Defense Of Necessity
by Bruce McEwen, November 27, 2013
In the predawn hours of Monday September 16th of this environmentally catastrophic year, Peggy Backup, 64, of Willits, a former plant pathology researcher at UC Davis, and Lucy Neely, 27, an organic gardener from Ukiah, pulled on their knit watch caps, zipped up their camo hoodies and set out to stop the Willits Bypass. The intrepid pair carried two-foot lengths of five-inch steel pipe with chain and locks welded inside.
The two women hurried their equipment through the cold dark morning, careful to keep the chains and pipes from alerting the heavily armed CHP officers guarding the tax-funded destruction wrought by Caltrans at Willits. They crept up to a long row of monster-sized belly-dump trucks parked along the shoulder of US Highway 101. Working quickly and quietly, their fingers numb from handling the cold steel, they inserted their hands and forearms into the steel pipes and locked themselves to the mighty earthmovers. The keys to the locks had been discarded; there was no turning back. Backup and Neely would have to be cut from the heavy equipment with acetylene torches or diamond-tooth saws.
Backup and Neely were the very picture of commitment.
Their commitment renders the Mendocino County DA the very picture of apoplexy.
The Willits Bypass demonstrations seem to have driven him to max-out prosecutions.
When the cold grey light of day dawned, the drivers of the big belly-dumps arrived, unaware they were in mixed company. As they proceeded with the pre-work inspections of their vehicles, they discovered the two activists and, reportedly, silenced the early morning songbirds with shouts long, loud and profane.
The trucks were being used to haul massive payloads of contaminated soil from a defunct mill site to refill a six-mile swath of clear-cut roadbed CalTrans had punched through Little Lake Valley, scraping tons of rich topsoil off as they went.
Big Orange's destructive path included the site of an ancient Pomo village, and the County would eventually cancel the permit for Caltrans to haul in the poisonous soil from the old LP mill site. But in the meantime something had to be done, and Backup and Neely, in the name of the laws Caltrans was ignoring, stepped into the breech.
This is the new, kinder and gentler activism against the greed and stupidity of modern American industry. In Edward Abbey’s day, George Hayduke would have funneled emery powder into the crank cases and watched through binoculars in the Canyonlands of southern Utah as the big diesel engines burned up in the distance.
But environmental activism has changed since the Monkey Wrench Gang days of straight up industrial sabotage; these days, serious people put their bodies in the gears of the big machines.
A letter had arrived from the Corps of Engineers condemning CalTrans for its failure to comply with the Mitigation and Monitoring Plan the Bypass permit was contingent on. Eureka-based Charlie Fielder, CalTrans District 1 Director, and his feckless flunky, Phil Frisbie, were ordered to the San Francisco District Corps of Engineers office where they were presumably asked why they were so flagrantly violating the agreement not to bulldoze the Mitigation and Monitoring Plan. That was back on September 6th.
Ten days later, the protesters determined that the Army lacked the will or the firepower to rein in CalTrans, so they took things into their own hands.
Dittoheads will howl that any interference with industry sacrifices jobs — much needed jobs, for chrissake! — ignoring the fact that the great industrialists they defend exported all the good, steady, well-paid jobs long ago to countries where the minimum wage is a bingo marker, and the workday ends whenever the boss says it ends.
The charges Backup and Neely face fall under the heading of Section 555 of the Penal Code, misdemeanor trespassing. It wouldn’t add up to much if Backup and Neely pled out — no jail time and only moderate fines, but DA Eyster wants extortionate amounts of restitution — payable to Caltrans, in the amount of hundreds of thousands of dollars.
Former DA Meredith Lintott charged pot trimmers with felony cultivation and possession for sale, as if the poor wights had any claim to the weed they worked on; DA Eyster piles on restitution fines so outrageous that the dissolute bigshots at CalTrans Eureka vinyl HQ high-five each other.
Ms. Backup isn't backing up and Ms. Neely isn't kneeling. They've retained Ed Denson of Redway and Philip DeJong of Ukiah to defend them.
The prosecutor assigned to the case is newbie Deputy DA Jessica Abramson. She advised the court her office was keeping its options open. The DA might amend the charges if The Boss comes to his senses.
DeJong made a motion to continue the trial hearing for his client, Peggy Backup. DeJong and Denson were confident that the prosecutor would not be able to prove that the trucks were on posted property, as described in Penal Code 554 and 554.1.
“Our concern is that at some point close to trial or at trial the prosecutor will attempt to amend the complaint to a charge of PC 602(k) which prohibits entering any lands whether unenclosed by fence, for the purpose of injuring any lawful business or occupation carried on by the owner of the land, the owner’s agent, or by the person in lawful possession.”
In his brief, Mr. DeJong emphasized the phrase any lawful business, pointing out that the Willits Bypass project has not been conducted in compliance with permits issued by the Army Corps of Engineers pursuant to federal environmental regulation, a fact announced by the Corps itself.
DeJong also said that CalTrans had despoiled an archeological site, burying it beneath contaminated soil. So, there were two major violations of the state agency’s permits. The two defendants were simply trying to prevent further law-breaking by Caltrans.
“It is the defense’s position that if this turns into a prosecution under PC 602(k), the question of whether CalTrans was acting lawfully will be at issue. Obviously, the defense is not prepared to begin, at present, a case with respect to that issue. All we have at this point is access to a number of news sources and a copy of the violation letter sent to CalTrans. A great deal of work needs to be done to transform this information into admissible evidence. If we can settle that, the complaint will proceed as presently charged, the defense will not need a continuance.”
Judge John Behnke denied the motion to continue, without prejudice, he said, until and unless the DA amended the complaint at which time he would grant it. The judge then ordered the attorneys to set a date to sit down like reasonable adults and discuss the issue before he would hear any more. December 3rd was the agreed upon date for said conference.
I followed Mr. DeJong to his office on Main Street where the gracious attorney supplied me with a copy of his eloquent brief and the letter from the Corps of Engineers.
The list of violations enumerated by the Corps was long and detailed. And damning. Caltrans was bulldozing the law along with Willits wetlands. “Federal law,” DeJong said, “trumps state and local legislation; and that’s where this case is headed.”
But if you lose at the local level?
“I don’t think any sane judge would grant these ridiculous restitution fines.”
Mr. DeJong could be right. But DA Eyster's Ahab-like pursuit of Will Parrish for an “offense” identical to that committed by Backup and Neely, continues. In the matter of the People vs. Parrish, however, the judge ruled that the DA’s Great White tendencies were his own affair, and the courts had no business dictating the terms of pursuit to him.
More of the protesters will be going through the courts in coming weeks, and if the DA treats them all with the same heavy-handed policy — exorbitant restitution, stay-away orders, search & seizure clauses, etc. — he will have effectively rescinded their First Amendment rights and silenced CalTrans’ lead critics. ¥¥