Just before Christmas, on December 22, 2014, Mendocino County Superior Court Judge John Behnke announced the amount that I am mandated to pay the California Department of Transportation for occupying a wick drain stitcher in Little Lake Valley in mid-2013: $9,460.45.
I carried out the 11-day-plus occupation as a protest against the monument to waste and folly known as the Willits Bypass. By the time Behnke finally issued his ruling, I had already gained far more insight into the budget inflation techniques employed by California's highway- and bridge-builders than I ever cared to know.
In September 2013, CalTrans submitted their first restitution claim against me. They claimed I had delayed the project to the tune of $490,002 in added expense to the California taxpayer. A few weeks later, they revised the figure to $481,155 — much more affordable.
At the time, DA David Eyster was prosecuting me for 16 misdemeanors, which carried a maximum jail sentence of eight years. The case was on the verge of trial when the DA's office changed course and settled the charges against me for what amounted to a slap on the wrist.
A few weeks later, in February 2014, Big Orange announced that they had revisited the restitution claim. Now, they were only seeking $154,733. The case finally landed in Judge Behnke's courtroom on September 2014. Big Orange had failed to respond to efforts by my attorney to mediate the amount. Instead, they brought an attorney over from Sacramento to prosecute me. CalTrans' lone witness was one of their Willits construction managers, a woman who had not even been at the scene of my protest until its final day. At the beginning of the hearing, CalTrans' lawyer announced that they were yet again revising the restitution claim against me. Now, he said, they had settled on the real figure I owed: roughly $108,000. In the end, Behnke charged me less than 10% of that. The figure the court is mandating me to pay is less than 2% of what CalTrans originally sought from me.
Still, the $9,460.45 figure is absurd. The damage the Willits Bypass' construction has done to oak woodlands, wetlands, creeks, streams, and the cultural sites of the Little Lake Pomo people is incalculable, literally so, being that no amount of money can compensate for what has been lost.
Aside from that, there's the strictly anthropocentric view of things: CalTrans' bypass is one of the greatest boondoggles perpetrated on the taxpayer in the history of the North Coast. Big Orange is spending on the order of $270 million (plus interest on bonds) to move 5,000-10,000 cars a day around Willits.
By contrast, the California Transportation Commission originally allocated CalTrans $60 million, which is nearer the standard going rate for a typical six-mile segment of freeway. Prior to the 2006 passage of Proposition 84 which opened up state bond money, Big Orange was prepared to do the job for far less. Meanwhile, California has the highest poverty rate of any state in the union.
CalTrans' pursuit of restitution fees against me has been a major sub-plot of the agency's efforts to deflect blame for the project's growing cost overruns and mounting delays onto its opponents. In October, CalTrans Spokesman Phil Frisbie, Jr. told the Lost Coast Outpost's Hank Sims that protesters added $12 million to the cost of the project in 2013 alone. Shortly after, I emailed Phil and asked him to clarify.
My relationship with Phil has felt a bit more strained than normal since Sept. 2014, when I published an AVA piece entitled “The Imaginary World of Phil Frisbie, Jr.” Still, Phil was still kind enough to write inline responses to various questions I posed. According to Phil, the biggest line item within the $12 million figure is $5 million in California Highway Patrol overtime compensation for “guarding” the construction site.
The CHP's compensation for policing the Bypass is one of the greatest boondoggles-within-the-bigger-boondoggle. A story will suffice.
On September 18, 2013, the CHP deployed around 40 officers for the ostensible purpose of preventing protesters from disrupting their SWAT team's extraction of the final Bypass tree-sit protesters. As I stood on private property observing the scene, four CHP officers sprinted across Highway 101 to arrest me for allegedly violating a court order proscribing me from coming within 100 yards of Bypass construction. For roughly three hours, I sat inside a Mendocino County Sheriff’s van while the SWAT team finished the extraction.
Several CHP officers discussed their financial windfall from policing the Bypass with Mendocino County Deputy Sheriff Mike Davis within my earshot.
I'm fairly sure they didn't realize that I write for the AVA. According to one CHP officer, his colleague postponed his retirement due to the Bypass protests, which had allowed him to collect over $15,000 in overtime.
The CHP never prevented a single direct action from taking place.
As far as I can tell, their main work product consisted of standing astride their patrol cars telling hippie jokes and listening to 103.3 FM, Real Country Radio (at least, that's what my third of four arresting officers listened to). Officer Davis personally thanked me for helping support his children's college education.
And Phil says the $5 million CalTrans opted to spend for this purpose is the fault of “the protesters.”
Another chunk of the $12 million stems from CalTrans' nearly one-month delay in kicking off the project because it had failed to complete migratory bird surveys, as mandated by the project EIR and the Migratory Bird Treaty Act.
I've explained this matter in the AVA's pages before. Phil blames CalTrans' gaffe on the protesters. “The actions of protestors [sic] caused CDFW to ask Caltrans to strengthen the protocols above and beyond the standard, and at significant additional cost to the project,” Phil told me.
Another significant part of the $12 million is that the County of Mendocino illegally issued a permit authorizing CalTrans' contractor to haul fill from the Apache Mill site north of Willits. Willits-area environmentalists sued, the County withdrew the permit, and the fill hauling was delayed by nine days. Under the terms and conditions of the CalTrans pseudo-reality, Bypass opponents are also financially culpable for this delay as well.
And a final major component of the $12 million? CalTrans' third restitution claim against me, which totaled $154,733. June 25, 2013 was my sixth day of occupying the “wick drain stitcher,” the derrick-like piece of machinery then crucial to CalTrans' progress on the Bypass.
I will mainly remember that day for my level of physical discomfort. It was the third day of an unseasonal rain, which had quickly soaked through my clothes and sleeping bag and rendered me with a bad case of the chills. For most of the day, I lay prostrate on my 2-by-7 plywood platform with my tattered blue tarp folded over me like a tortilla shell trying to capture as much warmth as possible.
From this position, I failed to notice an appearance at the base of the wick drain stitcher by the US Army Corps of Engineers' chief regulator for the north-pacific division (an area extending from San Francisco to the Oregon border), Jane Hicks. Ms. Hicks had chosen that auspicious day for her first field inspection of the controversial Willits project, which her agency had permitted in February 2012.
Several weeks after visiting the Bypass, Hicks issued a notice of non-compliance letter to CalTrans noting that Big Orange was “in serious breach of permit conditions.” She threatened to levy fines, or to suspend the project.
The maximum fine she could assess CalTrans for failure to remedy these violations under the US Clean Water Act? $27,500.
By the time she issued this threat, the amount of restitution Caltrans was pursuing against me was 17.8 times greater than what a federal agency could claim from Big Orange for violations of federal mandates.
It's clear who the system is designed to benefit.
The most important lesson to glean from my recent slog through the court system has to do with the US criminal justice system, which is crucial to upholding a social order based on extreme power imbalances, which include systemic oppressions based on race and class. The only banker of significant status who has done jail time in connection with the 2008 financial meltdown is Bernard Madoff, whose victims were other wealthy people. The big banks that issued hundreds of thousands of predatory loans to families across the US (who, disproportionately, were black and Latinos of limited means) knowing full well they would have trouble making payments down the line as rates increased, have gotten off almost totally unscathed.
On the flip side, I got off easy compared to the millions of people in the US languishing in prison or on parole for non-violent crimes. Most of the rest of the world regards the US criminal justice system as a classist and racist abomination, and for very good reason.
Unlike people who are truly vulnerable to this system's depredations, I have been fortunate enough to receive support from a very good attorney at no cost (Omar Figueroa), a prominent community newspaper (the AVA), and a regional body politic where actions like mine have a fairly strong base of political support.
Still, if I actually wind up paying CalTrans any restitution at all, I may be inclined to pay only in pennies.
Pennies,Benjamins, Euros whatever…just pay up! And, enough of this faux drama, please.
Will, you are correct: the 2013 AP Stylebook here on my desk does say to use ‘protester’ rather than ‘protestor’, although both are acceptable English. I will be more careful in the future :)
Phil at Caltrans
There is such a difference between what’s legal and what’s ethical and you’ve always stood for what’s ethical. I hope you never end up sending them a penny….they clearly should be paying for all the damage they’ve done.