Mendocino County Today: August 11, 2013
by AVA News Service, August 10, 2013
WE’VE COMPLAINED for years that California River Watch, in Occidental, is operated as a non-profit shakedown racket by a man named Jack Silver. Silver rifles the reports filed with the North Coast Regional Water Quality Control office in Santa Rosa by municipalities then, based on the information provided, sues the municipalities filing them. (You can google the stuff we’ve written about him over the years, or search this website for the more recent material.)
THE CITY OF WILLITS is trying to get in full compliance but, like many broke small towns, Willits finds it difficult to maintain an aging infrastructure. It’s not as if Willits is deliberately out of compliance with the Clean Water Act, and it’s not as if anybody is going to get sick because their tap water is running dirty in big rains. But Silver will now inform Willits that if they send him a nice hunk of dough as attorney fees for his hard work filing the complaint with the feds, typically between 50 and a hundred thou, he won’t take Willits all the way into court. This character has been doing this up and down NorCal for going on two decades.
LINDA WILLIAMS of the Willits News has an excellent account of Silver vs. Willits in that paper’s August 9th edition, reporting on Silver actually filing suit in federal court against Willits, and nicely sums up the action this way: “River Watch requests the court require the city to cease violations now
and in the future and to order the city to pay ‘civil penalties per
violation/per day for its violations of the CWA’ and to pay River Watch
reasonable attorney's fees and costs.” (Our emphasis)
WILLIAMS CONTINUES, “In this filing River Watch claims the city violated its sewer plant permit by having water leak into the sewer collections lines during wet weather. This overloads the sewer system and results in the discharge of raw
sewage into gutters, canals, and storm drains connected to adjacent
surface waters,” according to the claim document.
IN MAJOR RAINS, disposal systems all over the County have difficulty, and all over the County there is unwholesome runoff into streams from all manner of sources, but most of those sources don’t carry great big insurance policies that towns and cities carry.
WILLITS, like all the entities sued by Silver, is in the process of making good faith efforts to maintain a fail-safe infrastructure. If they weren’t, Silver wouldn’t have the information to sue them with.
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WHAT YOU WON’T FIND in an internet or site search however is this very revealing debate hosted on KSRO 1350 AM by (now KGO) talk host Pat Thurston back in 2002 between Jack Silver and Bruce Anderson and a water official from Santa Rosa. So, for a more complete picture here’s that exchange.
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KSRO Newstalk 1350 (AM) Santa Rosa, Pat Thurston Show, Thursday, March 14, 2002. Guests: Jack Silver, RiverWatch; Bruce Anderson, Anderson Valley Advertiser.
Pat Thurston: You may have read recently in the Santa Rosa Press Democrat an article by Mike Geniella about an environmental organization called RiverWatch. There was also a sidebar article. And today the PD editorializes about RiverWatch. If you are a person who reads the Anderson Valley Advertiser, this was a story that Bruce Anderson wrote several weeks ago. I don't know that there was anything additional in the Press Democrat. But right now we have Jack Silver joining us in studio. Jack is the founder of RiverWatch. Is that right Jack?
Jack Silver: Co-founder.
Thurston: Co-founder. And you are an attorney, right?
Thurston: And Bruce Anderson, editor and publisher of the Anderson Valley Advertiser, joins us via telephone. He wrote that piece. Hi Bruce.
Thurston: Nice to talk with you. And thanks for joining us. Now, Bruce, you started this with some allegations which were published long before the Press Democrat did. In your article you essentially accuse RiverWatch, and more specifically Jack Silver, of being a shakedown artist. Would you explain those accusations?
Anderson: Yes. Typically, the PD rides down out of the hills a month or so after the battle to shoot the wounded. So I have a certain amount of sympathy for Mr. Silver. He must be terribly wounded at this point.
Silver: I'm doing just fine, Bruce.
Silver: Thanks for your concern.
Anderson: But yes, I think that Mr. Silver, like other environmental groups, has found a loophole in the law that really doesn't have anything to do with environmental regulation, protecting us from derelict water agencies, keeping our water clean, saving trees, or the rest of it. By writing demand letters for offenses that are mostly minor, or if they're not minor, they're in the process of being cleaned up by cash-strapped public agencies, and very poor municipalities like Willits, for example. It's not as if these agencies are deliberately poisoning our water, or are knowingly and negligently allowing it to be poisoned. So on the basis of a demand letter he says, Give me 40, 50 thousand bucks and I'll go away and you won't have to litigate this. He knows and the City of Willits knows that they don't have a lot of money to pay legal fees for lengthy court battles. So typically, or at least in the past, a number of public agencies have paid up. And Mr. Silver has gone away and he's gotten his $40 or $50 grand, and another $40 or $50 grand has gone to his co-non-profit, the Clean Water Institute, to allegedly do a little environmental work on their own. So I don't know how else you could describe it. Write a letter...
Silver: Truthfully, and factually, which you're not doing...
Anderson: Then you should sue me.
Silver: I'm not interested in suing you, Bruce. I'm interested in following the conservative agenda of dividing the liberals to get them to fight amongst themselves. I think that it's both unnecessary and counterproductive. This is the first time we've spoke. That's right? You've never spoken to me before, right?
Anderson: That's right. I tried to call the Clean Water Institute...
Silver: I'm not involved with the Clean Water Institute.
Anderson: Same post office box in Occidental.
Thurston: Well, Jack, let's get to some of the things that Bruce is alleging here. He called you a shakedown artist. Are you a shakedown artist?
Thurston: You have filed lawsuits against public agencies and asked them to settle with you and you made a pretty penny off those settlements, right?
Silver: ... I don't know how you characterize a pretty penny. We settled a suit with Santa Rosa, and I probably, after paying co-counsel, and staff and all the costs, probably made about $50 an hour. So I'm not sure what a pretty penny is. In some circumstances, that's a pretty penny. As an attorney, working for a defense firm, I'd probably make about four times that much. But since I'm not defense minded, I don't. So...
Thurston: When you reach a settlement with a public agency that you've litigated against, as part of that settlement do you absolutely positively require something that has bettered the environment? Are the people in the community better off than they were before you litigated against their public agency?
Silver: Yes. For several reasons. The first thing we always look for and the first thing we ask for is abatement of anything that they're doing. I wouldn't characterize the violations we found to be minor. When you find minor violations in the records of the Regional Water Quality Control Board, and then you go in and do an audit on these places, you find horrendous practices that are not even covered by any inspection that's ever been done. That's what we get an abatement for. The monetary settlement, the penalties and the fees, we feel are absolutely necessary as a deterrent. If all these people did was wait around until somebody caught them in what they're doing, and this just made them fix it, which is what a lot of them do, it never has any incentive of being pro-active. Us being watch dogs out there and being able to jump on them and extract something that should be painful for them does teach them that they need to take care of this upfront. And not put the burden on the environment.
Anderson: That sounds wonderful. But I defy you... Well, perhaps in the Santa Rosa case he can name these sorts of egregious, major violations that are going unaddressed. But there's none up here in the case of Willits that I know of. What he's done in the case of Willits is write them a demand letter saying, Pay or I will sue you. And he tracks these so-called violations down at the Water Quality Control office. They're the ones who do the field work and write these things up in the first place. They either don't exist, or they're in the process of remediation, or they're so minor as to not warrant a violation in the first place. The state is derelict here, really. The state should be doling out the fines, not individual private attorneys.
Thurston: Isn't that the thing that allows you, Jack, to file the lawsuit? The state, if they don't impose some sort of financial penalty, then you, as a private citizen, can file a lawsuit and demand some sort of money?
Silver: Not exactly. In our point of view, I am the state. We are the state. The state is us. If people believe that the agencies and the government are going to take care of these problems, then they should believe what they read, too. Which I can't encourage them to do. Bruce, have you been to the plant in Willits? Have you looked at it?
Anderson: I've seen the plant in Willits, yes. I've never been afraid to drink the water in Willits.
Silver: Do you know they discharged during winter their treated effluent into the field next door that runs off into the creek and that it's non-monitored?
Anderson: We're not drinking the creek water. And it is monitored.
Silver: But the creek water is water for habitat for salmonids, and ...
Anderson: Santa Rosa's been using the lower Russian River as sort of a semi-waste line for years. And Brenda Adelman has addressed that for many years.
Silver: And that goes out in the ocean.
Anderson: The violations in the Russian River are much more egregious than anything that's happening in Willits. Willits is not doing that deliberately. Willits was in the process of remediating that particular problem.
Silver: Ok. If somebody is a child molester. If they're just not really doing it as bad as somebody else, we should leave them alone? I mean, come on now! The other thing is that everybody...
Anderson: There's a difference between a child molester and drinking water.
Silver: I don't consider disposing of this material into the creek a minor thing. It may be that they don't drink the water, but it is habitat. And it is degrading water for other creatures. I don't look at the fact that the earth is only here for us humans.
Thurston: Is it true that the City of Willits is in process of trying to address this problem? That they're already trying to correct it?
Anderson: Of course! They're not lunatics.
Silver: They're not addressing this problem. They deny that they do this. And when they do talk about it they talk about this wetlands project that they're trying to put in in the next six years that would be put in this flood plain. We're not dealing with that part of it, but we don't believe that even what they're planning to do will address the problem. What we want is monitoring. Maybe what they're doing has no harm on there, but if they don't know and they won't look, and they won't even monitor, that's when we start getting concerned because we say they're not monitoring because they're afraid they're going to find violations.
Thurston: But if you're asking them to monitor... Why do you...? I mean I have a copy of the letter you sent to Willits, that was republished in the AVA, in which you ask for $50,000 in remediation funds in lieu of penalty, and $40,000 in attorney fees and costs. That's a lot of money for a little town like Willits.
Silver: Let me explain that.
Anderson: That certainly leaves them a lot less money to do the remediation that Mr. Silver is allegedly requesting. And that's the problem with it. And the remediation part of that nearly $100,000 fee goes to Mr. Silver and his paper board Clean Water Institute, and then where does the money go?
Silver: Let me explain that.
Anderson: The Clean Water Institute hasn't done very much.
* * * COMMERCIAL BREAK * * *
Silver: The letter to Willits was a request. It's not uncommon when you're suing someone for them to know what you want. That letter was sent in response to that. It was not intended to be an absolute demand. Secondly, given the response that we've had from the public, money is off the table now. And we told Willits that. We sent them a letter that said as far as penalties, which we translate into remediation funds, and attorneys fees, we'll let the judge decide that. That way it's out of our hands. And let's focus on the real concern which is the water quality issue.
Anderson: The real concerns arose when Willits said, Yeah, we'll talk to you about all this stuff, but we want to do it in public, in open session so that everybody involved can sit in on it. At that point Mr. Silver backed off his shakedown letter.
Silver: Let me respond to that.
Anderson: That's the chronology of events.
Silver: You're mischaracterizing what occurred.
Anderson: No I'm not.
Silver: We paid ...
Anderson: I want to respond to the insult here about serving the right-wing agenda, that I wasn't able to respond to.
Silver: I didn’t say you were. I just said that when we bicker...
Anderson: That was the context. That's always...
Silver: That was a way of expressing it.
Anderson: What always happens when there are these mercenary environmental groups who basically exist to serve themselves and then their critics are characterized as somehow right-wing, or serving the right-wing agenda... It happens up here all the time. We have the Trees Foundation which is almost entirely a self-interested group. When you look at the Trees Foundation, an umbrella group, you find all kinds of disparate interests, but the same individuals, all of whom are profiting. So what is happening here on the northcoast, particularly, which I'm most familiar with, is that the environmental movement has become a jobs program, and sort of a haven for opportunists of all kinds as the environment itself deteriorates before our very eyes. There's an enormous contradiction between what people say they're doing and what they're actually doing. And then when they are criticized, the beautiful people, who by self definition are good and righteous, when they're criticized the critic becomes the right-winger or serving the right-wing agenda. And so forth.
Thurston: Jack, you said that Bruce got the Willits chronology wrong. Did you refuse to meet in public in the Willits situation?
Silver: I think that meeting in public is a good idea. The problem that we have right now is that we're just beginning our investigation. We had some meetings with them. We had some access to the public records. After we filed suit we had the right to get documents that we weren't able to get before that. And we would like to have a meeting, but we want to wait until we have sufficient information so it would make the meeting worthwhile and we'd be able to present information that the public would find more important than the, uh, information we have currently.
* * * COMMERCIAL BREAK * * *
Thurston: Joining us now is Miles Ferris. Miles is director of utilities for the city of Santa Rosa. Miles, I understand you were involved in the lawsuit by RiverWatch against Santa Rosa.
Ferris: Three of 'em.
Thurston: Were these unfounded lawsuits?
Silver: They weren't all RiverWatch suits, all three of them.
Ferris: Well, Jack, I somewhat disagree. It was Jack Silver that did it. By the way Jack...
Silver: (illegible) did it too.
Ferris: And that's your brother Paul, isn't it?
Thurston: What did you say?
Ferris: I said I think your co-counsel that you pay is your brother Paul.
Silver: No. He's one of them. We work with the Northern California Environmental Defense Center. There are a number of attorneys there. So you might see them on, on, on... on our letterhead sometimes in the pleadings.
Thurston: What about the suits against Santa Rosa, Miles? Do you think these were unfounded?
Ferris: Yes! One of them we went all the way to the Ninth District Court, and we prevailed. And the others were settled.
Thurston: Why were they settled?
Ferris: After the last suit I calculated how much was spent on the lawsuit. The worst part of it is that when you're embroiled in one of these things you absolutely lose your staff time and you probably lost 18 months of momentum in the department to make things better. You're being charged with hundreds of thousands, and millions and millions of dollars of potential liability that you can't ignore. So it becomes your primary focus to defend. And when you're all done and everything is said and done, you have really lost not only money, but more importantly you've lost your people for a tremendous period of time.
Thurston: What was the lawsuit you settled with RiverWatch about? What did it concern? Were you in the wrong?
Ferris: Were there violations? Minor violations. They were all in my opinion very minor. Yet the argument that is made that the reason the Water board hasn't gotten around to fining you or something, therefore you need a bounty hunter to come in and charge off with the bad guys and give them a fair and impartial trial and hang them with a rope whether they like it or not.
Thurston: Do want to respond that that, Jack?
Silver: I like Mr. Ferris. I like working with him. And we do disagree on these. However, the last suit of Santa Rosa that we won on we had found... first of all, we filed suit, and then the Regional Water Quality Control Board filed suit and they went through their suit and then found them to be in a certain amount of violation, which we then removed from our suit. But the thing that got them to the bargaining table, the thing that got them to settle is that the US District Attorney's office wrote an opinion that we were right and that they were violating the Clean Water Act by discharging irrigation water and allowing that to run off into the Laguna without monitoring and without a proper permit for that.
Thurston: So there was a settlement that was reached with RiverWatch. As a result of that settlement, were there changes in your policies or practices or procedures that you did in how this water was being discharged or being monitored? Was that part of your agreement in the settlement?
Ferris: No. First of all, what they won on they didn't win. We settled. We settled mainly because I made the decision, along with the counsel and the board, that in essence we're a public utility and I can tell you it wasn't easy to get them to go along with the settlement, but we have so much going on in the department in terms of building and maintenance, the wastewater transmission project, we're doing major changes in the treatment plant, not only that we're doing major technological changes to the entire utilities department, and we're spending several million dollars on it... To lose momentum in those areas to go to court and lose... it would cost us more to fight and win than it would cost to just settle.
Thurston: But was this a matter of all you had to do to get RiverWatch to back off is to pay them off?
Ferris: Well... We settled a lawsuit. I'd hate to characterize Jack and Paul as, uh, uh... you know, taking cash just to go away. Because, I... I really think Jack has ...
Thurston: But that's what it sounds like! If you were involved in some sort of violation, but there was nothing... if all they wanted was money, if they didn't say, And you have to change this and you said, Ok, we'll change this and give you money, then it was! Then it was for money! It was doing it for money! It was getting RiverWatch off your back by paying them off!
Ferris: Yeah. Let me say, I can't look into Jack's mind. I have no idea.
Thurston: But is that what happened? There was no change, only money?
Ferris: That's what happened.
Thurston: Jack, respond to that. It does sound like extortion!
Silver: The, uh, money that, you know, that we get... You know, the Regional Water Quality Control Board has to step in and take care of this. We worked very closely with the Regional Water Quality Control Board on this case. And we uncovered things that they had done and they were up for some renewals on their permit, and some of the process that they had, the Regional Water Quality Control Board approved to us, that they would take care of those. In those circumstances we want the agency to have the opportunity to do enforcement when they are the agency that should be doing enforcement.
Thurston: But your lawsuit didn't do anything for Santa Rosa. It didn't do anything for the quality of the water. Your lawsuit brought you money.
Silver: ... I don't agree with that.
Thurston: Then what did it do for people? What did it do for the quality of the water?
Silver: There was another $20,000 that went out in projects and that was already published in the Sebastopol paper, and if anybody wants to get a copy of that, that was done with a joint committee between the city of Santa Rosa and the RWPC organization and some representatives there...
Thurston: Brenda Adelman.
Silver: Yes. And there were several changes that were made by the Regional Water Quality Control Board that were part of their ACL, the administrative civil liability action, and also part of their interpretation and, uh, monitoring changes that they made to update Santa Rosa's permit. So it was unnecessary for us to put those also into a settlement agreement when the Regional Water Quality Control Board was already taking care of them. But they didn't take care of them until we uncovered it.
Thurston: You're saying it wasn't stipulated in the suit, but you're saying as a result of your filing the suit they did that, so then when you settled the suit all you needed at that point was money.
Silver: Well, I wouldn't characterize it that way. But at the end of the day, that's what has elapsed.
* * * COMMERCIAL BREAK * * *
Anderson: I'd like to make a few quick points here. Mr. Silver is being disingenuous in many ways. The fundamental problem is that public agencies as we all know carry massive insurance policies, and they're eminently suable. They pay off all the time to make attorneys and problems go away. School districts do it. Even big private media groups do it. They have these huge deductibles. And Mendocino County does it. They paid the late Judi Bari once $5,000 not to pursue an alleged false arrest suit. So lots of public agencies do that. The other part of this particular problem is that the non-profit laws and the charity laws in the state of California are loose to the point of non-existence. There's no enforcement! So these phony groups, these basically mercenary environmental groups, these mercenary do-good groups of all kinds, set up phony non-profits with paper boards and proceed to enrich themselves and their friends. Is $50 an hour a pretty penny? Yes. When you consider the fact that working people would be clicking their heels if they made half that an hour. Until the fairly recent past, Helen Libeu, who's well known in Sonoma County, Ron Guenther, up here in Mendocino County, Brenda Adelman and the Russian River Group, these people went out on their own time and money to save trees and monitor the river and do all that. It wasn't a profit making venture for them. I think they did it quite successfully. Considering that they were underfunded or that they were operating out of literally out of their own pocket. But now we have more environmental groups, more tax-exempt charities and less charity and fewer trees and a deteriorated environment generally.
* * * COMMERCIAL BREAK * * *
Thurston: Brenda Adelman is being quoted in the newspaper as saying that when she realized what you, Jack, were really about... it says here, “she quit RiverWatch three weeks ago over concern with its tactics.” Can you respond to that, Jack?
Silver: Not really. I know Brenda. She's a friend. We've had her over for dinner a number of times. Her concerns are, I think, uh, not necessarily related, as much as her quotes are.
Thurston: Her quotes?
Silver: Yeah. You're quoting her. Or paraphrasing her. I haven't talked to her personally, so it's difficult for me to determine exactly...
Thurston: You haven't talked to her? She didn't talk with you about all this?
Thurston: Bruce Anderson wrote a scathing article about RiverWatch. Now I understand, Jack, that you're going to be responding to the Press Democrat piece and their editorial. You're writing an op-ed piece and they've agreed to give you a whole 750 words. Right?
Silver: Right. And we're hoping they'll print it on Sunday, which is a better day for people to read it.
Thurston: Bruce do you have a final statement before we let Jack have the final word?
Anderson: Mr. Silver wound up in a lawsuit with the city of Fortuna over alleged environmental violations that were petty and in the process of being remediated. He has just written a demand-shakedown letter to the city of Ferndale. I don't know how that one's going to shake out because there was an ACCIDENTAL, by all accounts, sewage spill last winter. Hopefully, they'll resist. But it was during the Fortuna dispute that the Justice Department itself said that Silver's fees that he was asking of Fortuna were excessive. But that suit apparently settled as well before the Department moved farther. People should be very careful about what kind of boards they sit on, what kinds of so-called environmental groups they donate money to. Like the Redwood Summer Justice Project. People probably think that has something to do with redwood trees, when actually it's to fund a lawsuit that benefits three private individuals.
Thurston: They tricked me, huh Bruce?
Thurston: I sent them $50 bucks one time.
Anderson: You're a sap!
Thurston: I know.
Anderson: You got taken. You were had.
Thurston: I've learned my lesson.
Anderson: There are all kinds of groups. I wouldn't give the Sierra Club a nickel myself. But if you get Rachel's Environmental Newsletter, if you read that or Alexander Cockburn's fine work, you'll find out that there are legitimate environmental groups and you should support them. But there are so many illegitimate ones out there like RiverWatch and the Clean Water Institute, that you've gotta be heads up and I'm glad that people are finally waking up to this particular one.
Thurston: And Jack Silver...
Silver: We've been appreciating the attention too, because we've never had more support for what we are doing than ever. Primarily because they look at the sources of a lot of the materials and recognize, uh, you know, where there's smoke there must be fire. I also just appreciate the fact that we don't really discuss environmental issues and we're living in a time of increased degradation of our, of our environment and of our health. And bringing these things into the forefront, talking about them, getting people activated about them, that's what we're about and that's what we enjoy doing. We have a website — NorthernCaliforniaRiverWatch.org, if you can't find it under that you can search under River Watch and come up with that. On there we tend to post what we're doing, what we're about, we try and keep people up to date on the litigation that we have, the findings that we have, and we're also starting another part of the web page in which we give a detailed breakdown of everything that we're doing in the way of injunctive relief and if any moneys come out of that where the moneys went to and how they're spent.
THE ANNUAL summer argument between salmon and Central Valley farmers has commenced with the Bureau of Reclamation’s decision last week to release Trinity River water into the lower Klamath River between August 15th and September 21st. The farmers of course want that water, but biologists predict another wholesale salmon die-off if the lower Klamath, already running low, slow and too hot for fish, doesn’t get it.
The Little River Airport Logging Fiasco
Passing The Buck, In Slow Motion
by Mark Scaramella
Mendocino County owns about 57 acres of “productive timberland” near Little River Airport on the Coast. The property was profitably logged way back in 1996 during the period that some people remember as the “cut and run” days before Louisiana-Pacific and Georgia-Pacific finished decimating their huge Mendocino timber holdings and sold out what was left to the Fisher family (owners of The Gap clothing empire) and the Washington State employee pension fund, respectively. Back then the timber market was still holding up and the County made several hundred thousand dollars while also removing some dead and diseased trees.
That mid-90s harvest was conducted under a conventional “Timber Harvest Plan.” But since then, in an attempt to save small property owners some paperwork and time, California came up with an idea called a Non-Industrial Timber Management Plan (NTMP) which is supposed to allow smaller timberland owners “to prepare a long term management plan that reduces regulatory time and expense by providing an alternative to filing individual timber harvesting plans. In exchange, landowners agree to manage their forests through uneven-aged management and long-term sustained yield.”
The mid-90s THP was prepared by a local non-corporate timber forester who has been involved with County timber activities and discussions for decades now, Steve Smith. Smith, taking the theory of the NTMP to heart, then prepared one for Little River Airport in the hope that the County could make some ongoing revenue by sustainably harvesting a few Airport trees every ten years. But by the time 2006-2007 rolled around the timber market had begun to decline with more and more lumber being imported from Canada, and then ultimately collapsed with the Great Recession of 2008-2009. Making matters worse, in the intervening years some of the fir trees at the Airport have aged to the point that they are no longer expected to generate decent grade lumber. Nevertheless, County officials continued to limp along trying to get the NTMP’s “Notice Of Timber Operations” approved by the various agencies involved — which in the case of the Airport includes Caltrans because the Airport operates under Caltrans rules (and growing trees can become a factor in maintaining safe airspace for take-off and landing).
Until last year, the Little River Airport Logging planning was loosely assigned to the County’s now defunct “Forest Advisory Committee” which made occasional reports about the status of the timber harvesting at the Airport and loosely directed the County’s two main forestry experts, UC Extension Advisor Greg Giusti and the still-involved forester Steve Smith on plans and directions.
Then last year, in attempt to get serious about snagging some new revenues for the County’s depleted coffers, the County turned the project over to County CEO Carmel Angelo who turned it over to the County’s General Services Director Kristin McMenomey who was expected to push through the various contracts and timber harvest paperwork and then hire a logging operator.
But the process has become bogged down in layers of bureaucracy and agency approvals that no one at the County level was prepared for, especially Ms. McMenomey who bluntly admitted at the July 30 Board of Supervisors meeting, “I am not a forester.”
Late last month Ms. McMenomey reported, “The Board of Supervisors directed the Little River Timber Harvest be referred to the CEO’s office for a potential harvest in 2013. The direction from the Board was to have the CEO bring back the item to the full Board to hear Mr. Greg Guisti give his expertise on the subject. Due to Mr. Guisti’s availability (he was out of the Country for three months) to make such a presentation as well as the availability of the Board’s calendar at the end of the year, the decision was made to move forward with a Request for Qualifications (RFQ) to get the process started [again] and the CEO would utilize her CEO Report to keep the Board of Supervisors updated.
”The General Services Agency (GSA) received this project on November 7, 2012 and immediately met with Greg Guisti and Steve Dunnicliff (previous project coordinator) to obtain an update on the status of the Harvest. GSA began work with Greg Guisti to create a Request for Qualifications for a Forester so as to hopefully begin a harvest in 2013. GSA issued the RFQ on April 5, 2013 and a contract was executed on June 24, 2013 [with a local coastal conservation oriented forester named Roger Sternberg].
“Subsequent to the contract being executed, the forester immediately began contacting the [California] Department of Fish and Wildlife (DFW), US Fish and Wildlife Service (USFWS) and CalFire to determine whether or not these agencies would accept the following previous studies completed on the site:
“• Marbled Murrelet (MAMU) surveys completed in 2008 and 2009
“• Northern Spotted Owl surveys completed by MRC in 2010- 013
“On July 10th, the forester and a consulting wildlife biologist met with DFW to make the case that no additional Marbled Murrelet surveys were necessary. DFW was willing to not require additional surveys, however they wanted the County to designate five to six acres as a no-cut area and establish a 300-foot buffer, constituting a total of eight acres, in which harvesting would need to be approved by DFW. (This position was based on a site visit conducted by DFW staff in 2007.) A total of 14 acres of the property would likely be impacted, representing 25% of the NTMP area and 30% of the Redwood-Douglas-Fir stand. This could potentially result in a major impact on the amount of timber that could be harvested and the income that could be generated for the County. The decision was made to conduct two years of surveys (this year and next year) which should enable the County to harvest greater levels of timber in 2014 or potentially sell the rights to this timber to an organization like Save-The-Redwoods League — something that Linda Perkins from the Sierra Club has proposed.
“One survey has been completed to date and the other three will be completed by the end of this month. The USFWS and CalFire also require nonindustrial landowners to conduct six Northern Spotted Owl surveys for two years in a row. However, the Mendocino Redwood Company (MRC) conducted three surveys this year on its property adjacent to the airport. The Forester was able to get the USFWS to agree to another three surveys this year, plus three surveys next year, assuming that MRC conducts three surveys next year as well. One survey was completed on July 15th, and two others are scheduled to occur by the end of the month.
“The Forester [Mr. Sternberg] also met on July 15th with CalFire staff to review the Nonindustrial Timber Management Plan and discuss required amendments to the NTMP. As a result of this meeting, the Forester has a clear idea of how to expeditiously amend the NTMP. On the same day, he also met with Tom Peters of the [California] Department of Transportation (DOT) to discuss FAA requirements for clearing, the potential conflict of selling timber rights relative to FAA requirements, and the availability of bridge and culvert material that might be used on the truck road in the NTMP harvest area. Taking all of the above into consideration, the County is aggressively pursuing its option to harvest as soon as possible given the constraints of the various State and Federal agencies.”
“Aggressively…” We’d hate to see what passively would look like.
“Depending on upon the results of the surveys, it is anticipated that the County would have the ability to harvest timber in August of 2014. This would require GSA to embark upon the process of obtaining bids from loggers with a potential bid launch sometime in February/March of 2014. It should also be noted that deferring of the timber harvest until 2014 makes sense for two important reasons: 1) The mill price for Redwood will likely be better next year, as the current market is close to saturation; and 2) The County will be able to solicit bids from the best loggers in the area, many of whom are now committed to other jobs.”
It's far from clear that the mill price for redwood “will likely be better next year.”
With this background, the Board discussed the Little River Logging project again at their meeting on July 30.
Pinches: “I was under the impression that CalFire was the lead agency when it comes to timber harvest plans, especially a Non-Industrial Timber Management Plan which we have on that site. But in reading this memo from Kristin [quoted above] it basically says that our forester who was hired started the meeting by contacting US Fish and Wildlife and CalFire. But it says that the US Fish and Wildlife service was not willing — they required more additional surveys on the marbled murrelet but they wanted us to designate five or six acres of no-cut area and establish a 300 foot buffer consisting of eight acres. Basically they are just cutting the heart out of our NTMP.
Supervisor Carre Brown: “It's called extortion.”
Pinches: “So yes, we have an approved NTMP; we have to go by the new protocols on the biological surveys. But it's like, yes, we will let you harvest a few trees but leave the heart out. Maybe using the word ‘fight’ is the wrong word, but we need to stand up for ourselves on this. If that should be left out of the harvest area than it should have been left out of the NTMP! I don't see where things have changed to the point since we adopted this NTMP which we spent a lot of money on. It's like, [Supervisor] Carre [Brown] just said it, it's kind of like they're extorting us. We need a forester who will stand up to this!”
McMenomey: “What we had was you had the forester come back to me after meeting with CalFire. I listed out the agencies, I didn't list them out in the order of whom he met with first, but he met with basically everybody in the first week.”
Pinches: “CalFire is the lead agency, right?”
McMenomey: “Yes. And they are requiring the marbled murelet surveys to be re-conducted because our last surveys have expired. So, when approaching Fish and Game-Wildlife to try and negotiate, if you will, doing so many right now and so many per season because we are already too far behind to conduct everything now, they said, We will agree to, you know, fewer surveys if you agree to basically set aside, what is it?, about 14 acres or something like that? I just told the forester that that is not in accordance with the NTMP and that the answer was No, we were not going to do that. So instead we are going to conduct the surveys and we are just going to — we were already able to squeeze a couple in and we are just going to move forward and conduct the surveys in hopes that we will have all the results and we can go ahead and harvest in 2014. We should know — we also — there is an update to this, another hooting, a hooting [owl surveys], if you will, was conducted, so there have been two of the three, and both have shown no results which is good [no owls is good?], so we have one more to go on the hooting before we are finished with that.”
Pinches: “What is your projected total cost to do this, to hire this new forester to bring our NTMP up to speed to where we can harvest timber?”
McMenomey: “At this point, what we did is we entered into a contract not to exceed $20,000. So we are doing everything we can with the assistance of Greg Giusti and some other experts who are willing to donate their time.”
Pinches: “You expect the contract with the forester not to exceed $20,000. But does that include the biological surveys?”
McMenomey: “That's everything.”
Pinches: “That's everything?”
McMenomey: “That's everything. That's all the hooting, that's everything. He hires the sub-consultants under his limit with the county.”
McCowen: “Is it correct that there was a competing proposal to perform the same work for a not to exceed $10,000?”
McMenomey: “There was a proposal of not to exceed $10,000 to complete the work. However, the plan of action to do so, you could not do that in accordance with our NTMP because we have surveys that have to be conducted and it was CalFire's call. And you can't possibly know CalFire's call until you meet with them. And they made the call. You have to redo your studies.”
McCowen: “Was everyone bidding on the same project?”
With this, Ms. McMenomey hedged.
McMenomey: “Everybody was bidding on the same project. It wasn't a bid. It was a request for qualifications. And so we had a committee where they were all ranked and we had Steve Smith as our registered forest professional on the committee and myself and David Grimmm and Greg Giusti did not rank any proposals. He was there as a resident forest expert if we had any questions. We ranked them separately. We got together in a conference room. And we had our top three. They were very clear who our top three qualifications were, based on the criteria that we were given. And so we looked at the top three and we did the scoring and summarized it and the top one came out and it was Mr. Sternberg.”
McCowen: “I guess I just have a comment. I'm kind of concerned that we've had this on the radar for a long time and we have known the issues and the surveys and so forth and the Board gave direction last November to move forward and it wasn't until five months later that the RFQ was issued and so here we are, we have missed this logging season.”
McMenomey: “We had we would have missed it anyway. We needed to start back in May of 2012 in order to harvest in 2013. So we missed the mark on that one. So...”
McCowen: “I've heard that before.”
Supervisor Dan Hamburg: “What is— so I understand, we've got Dave Giusti engaged in this, Giusti, engaged in this?”
McMenomey: “Greg Giusti, yeah.”
Hamburg: “Excuse me, Greg Giusti.”
McMenomey: “He is engaged to assist me if I have some questions or need some guidance, as I am not a registered forester. He is. He is sort of the resident County expert when it comes to, when it comes to a point where, like, for example, in Fish and Game-Wildlife warning us to basically not harvest a major portion of that property which is not in accordance with the NTMP. I said, you know, I sent an email to him, I said, honestly, my feeling is, No. Is there is some issue here? And he was like, well, no; it should be in there; it's not in accordance with the NTMP. So he is sort of my double check if you will.”
Hamburg: “Okay. What about Steve Smith?”
McMenomey: “Steve Smith — I have utilized him in the past on the first time I did this which was many, many years ago and he is also a valuable resource and is very familiar and he has offered his services to our forester, you know, at, for free, basically, if he —”
And at this point the video of the Board meeting mysteriously hiccupped and the rest of the discussion was cut off. (The County’s videographing service is looking into the problem.)
But we have gathered since then that the Board expressed some cautious concern about Ms. McMenomey’s selection process and whether she had really selected the right forester or simply chosen someone who was more familiar to the Smith-Giusti government forester axis to see if this now unbelievably convoluted process can ever be completed.
As the conversation in the Board room proceeded the Board became increasingly frustrated with the “coordination” costs being run up by Mr. Sternberg without much on-the-ground progress. Pinches wondered if Mr. Sternberg, who specializes in conservation easements, not actual logging, has a good handle on the timber market itself.
Back in 2011 the Board imposed an important condition on the project before they approved any contract with a timber operator: They required that a specific buyer (a mill, in other words) be lined up and committed with a firm purchase price for whatever logs were to be cut before any actual logging was done.
These days with so few mills left on the northcoast and many of them either far away (increasing trucking costs) or specializing in only certain kinds of logs and tree species, that sensible requirement will be hard to meet — and it hasn’t even come up in this latest round of buck passing and bureaucratic bickering.
With all the restrictions and delays and the clock running on the billable paperwork hours, the County will be lucky to make any profit on the job at all.
At the rate they’re going and with the layers of uncertainty involved, Mr. Sternberg could easily come back in a month or two with another costly new wrinkle that will not only require the County to pay him more than his $20k “not to exceed,” but might kill the job entirely if the economics don’t pencil out. Thus losing all the money invested in the paperwork so far.
At that point the County will be forced to deal with the question of selling what’s left of the Airport's timber rights to a local conservation organization or selling the 57 acres at a loss to someone with enough competence to actually do the job. Someone with competent forestry professionals and much deeper pockets — like the Airport’s neighbor: Mendocino Redwood Company. ¥¥