Caltrans & Criminal Restitution

The trial of AVA writer Will Parrish for his opposition to the Willits Bypass is currently scheduled to begin on January 27th at the Mendocino County Courthouse in Ukiah. Parrish faces 16 misdemeanor counts of unlawful entry and resisting arrest. He also faces a maximum of $481,155 in criminal restitution fees, which would be payable to the California Department of Transportation (CalTrans).

These absurdly inflated charges stem from Parrish's act of occupying a wick drain “stitcher” (a 100-foot tall boom attached to an excavator that installs drainage tubes into wetlands) for more than 11 days in the early summer, thereby slowing construction of the monument to waste and folly that is Caltrans' Willits Bypass.

The Parrish case is a bellwether for Caltrans' pursuit of “criminal restitution fees” in court cases against Willits Bypass protesters. The agency’s spokespeople claim the protesters have cost taxpayers vast sums due to construction delays, as well as the cost of paying the California Highway Patrol to police the construction.

Most recently, Caltrans spokesperson Phil Frisbie, has claimed protesters have cost the agency $4.6 million. There are also millions of dollars in additional costs, Frisbie told KMUD News' Christina Aanestad that one of the project’s contractors is claiming based on so-called “global impacts.” This obnoxious and entirely artless phrase, Frisbie explains, refers to “the accumulation of small delays and some of the inefficiencies because some milestones weren’t met because of the protests.”

Caltrans is obviously waging a campaign to misdirect public outrage concerning waste of taxpayer dollars — a Caltrans specialty, even when measured against the standard bloat in state government — toward those who have actually stood up against Big Orange's unnecessary, absurdly oversized and highly damaging freeway project. In reality, Caltrans is constructing one of the most expensive highway projects per mile in recent memory, costing four times the state and national average for comparable projects.

Unfortunately for Caltrans, these “criminal restitution” claims only reinforce the protesters' point that the corrupt culture of Big Orange leads to accounting that is, to say the least, very disproportionate. (Does anybody really know how much roads cost? CalTrans knows this and so do their contractors and they can pad their invoices, just like in this case which is the only one to come to light lately, without fear of audit or constraint.) CalTrans’s “bill” for Parrish not only makes the cost and size of the freeway project in question absurdly bloated, but the cost and size of the claim against the protesters who are opposing the freeway is bloated to the point of making a complete mockery out of the people — public employees, it should be noted — who are making the claim.

The Parrish case provides a nice window into Caltrans' knack for cost inflation. Caltrans has never looked more frivolous and greedy than it does here, and this taint has spread to Mendocino County DA David Eyster who looks utterly vindictive.

Caltrans first claimed Parrish owed them $490,002. Mendocino County DA Eyster dutifully filed this claim. Someone at Big Orange then realized they were trying to charge Parrish for delaying construction on two Sundays (which are off days for the Caltrans crews). This sort of accounting doesn't even pass the laugh test by Caltrans’ own standards, so the Big Orange people tried to backfill [sic] by finding a few other things they could try to charge Parrish for. The modified claim registered $481,155 — much more affordable.

Parrish did take an effective stand against the Bypass. And his action did instrumentally delay Caltrans' destruction of the wetlands, just as it called attention to the fact that the Bypass was causing the largest destruction of wetlands in northern California of any project in over fifty years. Incidentally, Army Corps of Engineers Chief Regulator Jane Hicks traveled from her San Francisco office to the Bypass wetlands destruction area on one of the days Parrish was occupying the stitcher, June 25th.

Hicks subsequently sent Caltrans a stinging “Notice of Noncompliance” letter, outlining five main ways that the agency has violated its permit. The first of those focused on the narrow issue Parrish was protesting: the installation of wick drains. Parrish's protest may not have directly prompted Hicks' sudden expression of concern about wick draining, but it is true that the political pressure protesters have brought to bear has forced agencies like the Army Corps, which has the ability to suspend construction of the Bypass, not to give away the store like usual.

In fact, the Army Corps is now making noises about doing exactly that: suspending the Bypass construction permit. While we aren't holding our breath, Army Corps regulator Laurie Monarres did appear on ABC-7 news in the Bay Area and make the following statement with regard to Caltrans and the Willits Bypass this past fall:

“At this point they are not in compliance with their permit conditions. We are trying to give them every opportunity before suspending the permit, but it's approaching that now.”

We have reviewed Caltrans' itemized claim against Parrish (see below). It was obtained via a California Public Records Act request filed by the Save Our Little Lake Valley organization. This document is so transparently absurd that it's difficult to know where to begin with deconstructing it, so to speak. For starters, let's consider the fact that Caltrans seeks to charge Parrish for “construction delays” on four days when Caltrans wouldn’t have done any work anyway!

From June 24th to 26th, unseasonal rains fell upon Willits. The entire freeway construction effort was halted due to the wet, muddy conditions on those days, as well as on June 27th, when none of Caltrans' employees bothered to show up for work in other areas of the Bypass construction effort either. Yet, Caltrans says Parrish owes them $44,876 a day for the first three of those days, and $52,562 for the fourth.

According to Caltrans math, then, Parrish owes them $187,190 because it rained. That's the basis for almost 40% of Caltrans' claim.

As the Mendo woo-woo crowd might put it, Caltrans has an unhealthy pattern of shifting blame to Parrish for their own problems. For instance, Big Orange wants $22,050 in damages from Parrish due to a direct action blockade of the wick drain stitchers that took place on June 19th. Nearly 50 people conducted this blockade. Parrish was not even there.

That brings us to perhaps the most egregious line items in the claim: $28,500 in daily “liquidated damages” Caltrans claims to owe its contractor, DeSilva Gates Corporation, due to construction delays resulting from Parrish's action. But $28,500 is the daily amount Caltrans is obligated to pay DeSilva Gates for delays to the entire project. Parrish prevented one piece of construction equipment (albeit a crucial piece of equipment as far as the contractor goes) from working in one area of a six-mile construction zone.

Even Frisbie admitted that Caltrans included $328,000 in the claim for production delays and daily overhead for the whole project, not just for the area where Parrish was located. So about 90% of Caltrans' claim against Parrish as being totally preposterous.

As a final point, there is the California Highway Patrol's role in all of this. Extrapolating from Caltrans' claim, each CHP officer who policed the Willits Bypass this past year was paid $85 an hour, largely to stand around and make hippy jokes all day and night while not preventing the occasional protester from obstructing one or another piece of construction equipment.

For the first eight days of Parrish’s action, Caltrans denied him food and water. Parrish had been without food for nearly five days as of June 27th, when another climber with demonstrable ninja-like capabilities, who went by the name “Winged Froglamander,” got behind the CHP’s line, climbed up the second wick drain stitcher, and amazingly sent a traverse line over to Parrish's tower, enabling the starving reporter to pull roughly 100 pounds of food and water across to his perch. This amazing acrobatic feat concluded when the “Froglamander” guy disappeared from the wick stitcher the next morning without the CHP ever apprehending or even identifying him.

The CHP, frustrated and embarrassed, responded by doubling their deployment of officers at night.

Now, Caltrans also claims Parrish owes them for this ridiculous overdeployment of CHP officers, whose main function was evidently to prevent Parrish from receiving fresh supplies (a task at which they failed). The only time the huge CHP contingent ever repelled a Willits Bypass protest action actually came on June 22nd, when they arrested six people who were trying to bring a starving Parrish food and water. The Caltrans line of thought, then, is that Parrish should be charged for his own starvation. The Mendocino County District Attorney apparently agrees.

So, nearly nothing in Caltrans' claim against Parrish would ever pass muster in a sane world — and probably not in front of a sane jury. A broader issue here is the premise that a public agency can bring criminal restitution charges against people who slow down construction in an effort to make a public point. This line of thinking completely ignores political context. And it's impossible to understand anything, to be effective in the world at all, outside of such a context.

Parrish should not have to pay Caltrans anything. If anyone owes money for reparations, it's Caltrans which is destroying a vast area of wetlands and other vital public resources.

Caltrans has constantly used lies and political manipulation to finagle vast amounts of taxpayer money for it, attempting to build the biggest and most expensive bypass possible. For example, in the mid-'90s, as well as in 2007, the California Transportation Commission offered Caltrans $60 million to to build a two lane bypass around Willits to relieve congestion in town and get through truck traffic off Main Street. Both times, Caltrans officials used lies to manipulate the public record. They insisted on the need for a four-lane freeway project, which ultimately clocked in at $200 million just for “Phase 1” of a two-phase construction effort.

Therefore, even by a conservative estimate, one that accepts the (false) premise that Willits needed a Bypass in the first place, that’s $140 million of our tax dollars wasted by Caltrans.

The DA appears to believe Big Orange's accounting is sound, though, or at least enough that he has filed Caltrans' claim on Big Orange's behalf. DA Eyster's office negotiated a collective cap of $7,000 on restitution from two other protesters, Lucy Neely and Peggy Backup (Caltrans had sought more than $29,000 from them). But his office is making the contradictory claim that it would be unconstitutional to put a cap on Caltrans' restitution claim against Parrish. Meanwhile, the DA's spokesperson, Mike Geniella, wrongly told KMUD News' Christina Aanestad on January 8th that the DA at one point offered Parrish a plea deal that included no restitution at all!

Parrish has a pre-trial hearing scheduled for Thursday, January 23rd at 10:30am, with a press conference to follow at noon. Check the AVA's web site for information and updates on the full trial.

 

Caltrans Willits Bypass Protest Cost Estimate

 

Wednesday, June 19, 2013
$4,380 - (2) Cat 375 Excavators, 4 hours each - Protestors on site at 10:30
$420  - Gradall 544D-10 Fork Lift, 4 hours - Equipment work stopped at approximately 11:00
$14,250  - Liquidated Damages (delay costs @ 4 hours) - Contractor's claim for delay to production
$3,000  - Time Related Overhead (daily costs) - Contractual daily costs for Contractor's overhead

Thursday, June 20, 2013
$2,920  - Cat 375 Excavator, 8 hours - Idle due to protestor
$704  - Equipment Operator, 8 hours - Idle due to protestor, Lost production
$632  - Laborer @ wick spool, 8 hours - Idle due to protestor, Lost production
$6,120  - CHP @ 72 hours, 4 per day with 2 at night - On site because of protestors
$28,500  - Liquidated Damages (delay costs @ 8 hours)
$6,000  - Time Related Overhead (daily costs @ 8 hours)

Friday, June 21, 2013
$2,920  - Cat 375 Excavator, 8 hours - Idle due to protestor
$704  - Equipment Operator, 8 hours - Idle due to protestor, Lost production
$632  - Laborer @ wick spool, 8 hours - Idle due to protestor, Lost production
$6,120  - CHP @ 72 hours, 4 per day with 2 at night - On site because of protestors
$28,500  - Liquidated Damages (delay costs @ 8 hours) - Contractor's claim for delay to production
$6,000  - Time Related Overhead (daily costs @ 8 hours) - Contractual daily costs for Contractor's overhead

Saturday, June 22, 2013
$2,920  - Cat 375 Excavator, 8 hours - Idle due to protestor
$704  - Equipment Operator, 8 hours - Idle due to protestor, Lost production
$632  - Laborer @ wick spool, 8 hours - Idle due to protestor, Lost production
$6,120  - CHP @ 72 hours, 4 per day with 2 at night
$28,500  - Liquidated Damages (delay costs @ 8 hours) - Contractor's claim for delay to production
$6,000  - Time Related Overhead (daily costs @ 8 hours) - Contractual daily costs for Contractor's overhead

Sunday, June 23, 2013
$170  - Light Plant for CHP (daily cost) - two lights in the ARE diary

Monday, June 24, 2013
$2,920  - Cat 375 Excavator, 8 hours - Idle due to protestor
$704  - Equipment Operator, 8 hours - Idle due to protestor, Lost production
$632  - Laborer @ wick spool, 8 hours - Idle due to protestor, Lost production
$6,120  - CHP @ 72 hours, 4 per day with 2 at night - On site because of protestors
$170  - Light Plant for CHP (daily cost)  - ARE diary doesn't indicate how many light plants were used.
$28,500  - Liquidated Damages (delay costs @ 8 hours) - Contractor's claim for delay to production
$6,000  - Time Related Overhead (daily costs @ 8 hours) - Contractual daily costs for Contractor's overhead

Tuesday, June 25, 2013
$2,920  - Cat 375 Excavator, 8 hours - Idle due to protestor
$704  - Equipment Operator, 8 hours - Idle due to protestor, Lost production
$632  - Laborer @ wick spool, 8 hours - Idle due to protestor, Lost production
$6,120  - CHP @ 72 hours, 4 per day with 2 at night - On site because of protestors
$170  - Light Plant for CHP (daily cost) - no documentation in the ARE diaries
$28,500  - Liquidated Damages (delay costs @ 8 hours) - Contractor's claim for delay to production
$6,000  - Time Related Overhead (daily costs @ 8 hours) - Contractual daily costs for Contractor's overhead

Wednesday, June 26, 2013
$2,920  - Cat 375 Excavator, 8 hours - Idle due to protestor
$704  - Equipment Operator, 8 hours - Idle due to protestor, Lost production
$632  - Laborer @ wick spool, 8 hours - Idle due to protestor, Lost production
$6,120  - CHP @ 72 hours, 4 per day with 2 at night - On site because of protestors
$170  - Light Plant for CHP (daily cost) - two lights in the ARE diary
$28,500  - Liquidated Damages (delay costs @ 8 hours) - Contractor's claim for delay to production
$6,000  - Time Related Overhead (daily costs @ 8 hours) - Contractual daily costs for Contractor's overhead

Thursday, June 27, 2013
$800  - Superintendent (8 hours) - Idle due to protestor
$1,408  - (2) Equipment Operator, 8 hours each - Idle due to protestor
$1,264  - (2) Laborer @ wick spool, 8 hours each - Idle due to protestor
$5,840  - (2) Cat 375 Excavators, 8 hours each - Idle due to protestor
$420  - Gradall 544D-10 Fork Lift, 8 hours - Idle due to protestor
$8,160  - CHP @ 96 hours, 4 per day with 4 at night - On site because of protestors
$6,120  - CHP @ 72 hours, 4 per day with 2 at night)
$170  - Light Plant for CHP (daily cost) - two lights in the ARE diary
$28,500  - Liquidated Damages (delay costs @ 8 hours) - Contractor's claim for delay to production
$6,120  - CHP @ 72 hours, 4 per day with 2 at night
$6,000  - Time Related Overhead (daily costs @ 8 hours) - Contractual daily costs for Contractor's overhead

Friday, June 28, 2013
$800  - Superintendent (8 hours) - Idle due to protestor
$1,408  - (2) Equipment Operator, 8 hours each - Idle due to protestor
$1,264  - (2) Laborer @ wick spool, 8 hours each - Idle due to protestor
$5,840  - (2) Cat 375 Excavators, 8 hours each - Idle due to protestor
$420  - Gradall 544D-10 Fork Lift, 8 hours - Idle due to protestor
$8,160  - CHP @ 96 hours, 4 per day with 4 at night - On site because of protestors
$170  - Light Plant for CHP (daily cost) - two lights in the ARE diary
$28,500  - Liquidated Damages (delay costs @ 8 hours) - Contractor's claim for delay to production
$6,000  - Contractual daily costs for Contractor's overhead

Saturday, June 29, 2013
$170  - Light Plant for CHP (daily cost) - two lights in the ARE diary
$6,120  - CHP @ 72 hours, 4 per day with 2 at night

Sunday, June 30, 2013
$170  - Light Plant for CHP (daily cost) - two lights in the ARE diary
$8,160  - CHP @ 96 hours, 4 per day with 4 at night

Monday, July 01, 2013
$2,920  - Cat 375 Excavator, 8 hours - Idle due to protestor
$1,277  - Cat 375 Excavator, 2 hours - Idle due to protestor
$880  - Equipment Operator(s), 10 hours - Idle due to protestor, Lost production
$790  - Laborer(s) @ wick spool, 10 hours - Idle due to protestor, Lost production
$8,160  - CHP @ 96 hours, 4 per day with 4 at night - On site because of protestors
$15,846  - CHP extraction, 140.5 hours plus 1,611 miles @ 0.84
$85  - Light Plant for CHP (daily cost)
$28,500  - Liquidated Damages (delay costs @ 8 hours) - Contractor's claim for delay to production
$6,000  - Time Related Overhead (daily costs @ 8 hours) - Contractual daily costs for Contractor's overhead
$5,400  - Man Lift Costs (2 @ $2,700 each) - On site because of protestors

Total: $481,588  - Estimated cost for the period indicated