IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT, DIVISION 2
PAUL V. CARROLL/121369
Attorney At Law
5 Manor Place
Menlo Park, California 94025
Attorney for Petitioners
CDF’s latest application should be denied for any number of reasons. First, it is simply an attempt to reargue its opposition to Petitioners’ request for a writ of mandate from this Court. CDF has a habit of this. Below, after it filed its opposition on the merits, it sent the trial court a supplemental letter brief that was neither requested nor authorized. Then, at the hearing on the merits, it tried to file a second opposition brief. The trial court rejected both. We ask this Court to do the same, and reject this application because it reargues what is or should have been in CDF’s opposition.
Second, CDF’s central argument that this Court’s stay will be moot by August 20, 2003, is false. It will not be moot, because, assuming Petitioner prevail, the trial court may not have fashioned a remedy by then. Without a remedy and without a preliminary injunction in place while a remedy is being considered, the forest could be logged.
Third, CDF offers new interpretations of the settlement agreement and the trial court’s denial of the preliminary injunction. Until CDF settles on a consistent and coherent theory, it ought to wait to be heard.
Fourth, CDF’s factual arguments were already made in its opposition, and/or are based entirely on hearsay and are inadmissible.
THIS COURT’S STAY WILL NOT BE MOOT BY AUGUST 7, 2003
The trial court has said it will try to have a ruling on the merits by August 7, 2003. But even if it does, and assuming it rules in Petitioners’ favor as it has said is likely, its ruling will not moot the denial of the preliminary injunction or this Court’s stay. The trial court has bifurcated its determination of the merits from its determination of the appropriate remedy under CEQA. (Pub. Res. Code, § 21168.9.) Assuming Petitioners prevail on the merits, the trial court will have a hearing on August 7, 2003, on timber companies’ defenses, after which it will decide the appropriate remedy. How long that will take is anyone’s guess. Thus there will be a substantial period of time between the ruling on the merits and the ruling on the remedy. Had the trial court granted the preliminary injunction, it would be in effect during this time. Without a preliminary injunction or stay in effect, the forest could be logged.
CDF’S LATEST THEORY ABOUT THE SETTLEMENT AGREEMENT
If incoherence were water, CDF and its counsel long ago would have drowned. From the inception of Petitioners’ motion for preliminary injunction, CDF has been desperate to find a tenable position under the settlement agreement. First, they grudgingly conceded that Petitioners were entitled to bring injunctive relief against the two THPs: "While Respondents recognize Petitioners’ right to seek injunction on any ground, Respondents did not admit to the propriety of that attempt and further warned Petitioners that they needed to tie any attempt to enjoin timber harvest plan activity under THPs 483 and 484 to an alleged deficiency in the management plan itself." (Exh. H, App. 177-178, italics added.)
While this statement itself is barely coherent—how does one recognize the right to apply for injunctive relief but not the "propriety of that attempt"?—CDF did at first "recognize Petitioners’ right to seek injunction on any ground."
Thereafter CDF came up with its Mad Magazine argument—that it could log under the profoundly obsolete 1983 plan as long as it approved something, say old copies of Mad Magazine, as the new management plan and its EIR, even if they were later set aside under CEQA.
Now, in the present application, it has raised a new theory—that Petitioners’ application for a stay in this Court is a breach of the settlement agreement. But if this is true, it follows that Petitioners’ application for preliminary injunction in the lower court was a breach of the settlement agreement as well. But CDF never made that argument below. We wonder how it can make it for the first time here. In any event, we remind the Court that the settlement agreement sanctions a request for injunctive relief and by extension a request for a stay:
Petitioners are not in any way restrained by this Agreement from challenging the Board’s and/or CDF’s approval of a new management plan for JDSF, and/or the certification of an EIR for the new management plan. Such a challenge would include the right to request a court to enjoin timber harvest operations in JDSF, including timber operations under THPs 483 and 484 for not being consistent with the new management plan.
(Exh. V, App. 293-294.) And then there are the numerous admissions by CDF’s counsel confirming Petitioners’ right to seek injunctive relief against THPs 483 and 484. Consider again just one of them:
This responds to your status report filed at the request of the Court. [¶] I draw your attention to an apparent misunderstanding or misstatement on page 2 of your report, lines 12-19. I am unclear as to what language in the draft you believe prevents you from seeking a "halt to all logging" if the new management plan is found "legally invalid". We have no problem with you seeking any kind of injunctive order you wish. The problem is that we do not wish to pre-agree that logging will not take place until the plan is found "legally valid". In other words, we should agree to neutral language which preserves your right to seek injunctive relief, but does not predetermine the outcome of that relief.
(Exh. E, App. 88, underscore in original.)
THE CDF CONTINUES TO MISCHARACTERIZE THE TRIAL COURT’S DENIAL OF THE PRELIMINARY INJUNCTION
According to CDF: "The lower court’s denial of Preliminary Injunctive Relief was based upon a recognition by the lower court that the Motion for Preliminary Injunction was flawed and not based upon the instant case, Campaign II." (Application, p. 4.) Whatever the lower court said, it did not say this. Though we do not understand the lower court’s reasoning, it did not find that logging could go forward under the settlement agreement. It merely said, "The terms and provisions of settlement agreement and implementing order are the subject of a separate legal action and are not directly involved in this petition for writ of mandate." (Exh. U, App. 288.)
CDF’S ARGUMENTS REGARDING HARM ARE MADE IN ITS OPPOSITION AND/OR ARE BASED ON INADMISSIBLE HEARSAY
CDF’s evidence regarding harm, as well as that of timber companies, is set forth in their respective oppositions. So far as we can determine, CDF offers no new evidence, let alone new evidence that could not have been previously brought to the Court’s attention.
Further, the actual evidence that CDF offers in this application is all inadmissible hearsay. It is what others have told the proponent of the evidence, Charles Getz, CDF’s counsel. Below, Petitioners set forth their formal objections to the contents of Mr. Getz’s declaration.
The Court is respectfully requested to deny CDF’s application.
Dated: July 15, 2003
Paul V. Carroll
Attorney for Petitioners
PROOF OF SERVICE
I am a citizen of the United States and a resident of the County of San Mateo. I am over the age of eighteen years and not a party to the within entitled action; my business address is: 5 Manor Place, Menlo Park, CA 94025.
On July 15, 2003, I served one true copy of PETITIONERS’ OPPOSITION TO APPLICATION FOR EXPEDITED HEARING AND DISSOLUTION OF STAY by placing a true copy thereof enclosed in a sealed envelope, and having such envelope delivered to the following via Federal Express for overnight delivery:
I, Paul V. Carroll, declare, under penalty of perjury, that the foregoing is true and correct. Executed on July 15, 2003, at Menlo Park, California.