[Note: This document was scanned and converted to text by OCR. The formatting is not the same as in the original, and the text may not be completely accurate]
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT, DIVISION TWO
CAMPAIGN TO RESTORE JACKSON STATE
REDWOOD FOREST DHARMA CLOUD
CHARITABLE FOUNDATION TRUST, and
FORESTS FOREVER FOUNDATION,
SUPERIOR COURT of MENDOCINO COUNTY,
CALIFORNIA DEPARTMENT OF FORESTRY
AND FIRE PROTECTION; BOARD OF
FORESTRY, ANDERSON LOGGING, INC.,
WILLITS REDWOOD COMPANY, INC.,
MENDOCINO FOREST PRODUCTS, LLC.
Real Parties In Interest.
Real Parties In Interest California Department of Forestry and Fire
Protection and California Board of Forestry (hereinafter "CDF") request an
expedited hearing in the above case on the Verified Petition for Writ, as well
as an immediate lifting of the Stay or in the alternative, a modification of this
Said request is based upon the attached Supplemental Declaration of
Charles W. Getz, IV as well as the pleadings and papers on file herein.
This application is based upon the following factors.
1. A hearing for August 20, 2003 on the Petition for Writ will be
moot by that date, and therefore cannot be effective. As the Petitioners have
accurately represented to the Court, the trial court. Judge Henderson, stated on
July 7,2003 after taking the matter under submission, that he would rule on or
by August 7,2003. Since the instant Petition seeks this Court's review of Judge
Henderson's Preliminary Injunction denial, a ruling on the merits will obviously
obviate the need for the Petition or any additional review by this Court. A
preliminary injunction cannot survive the ruling of the trial court on the issue
of whether a permanent injunction should be granted. Such denies due process
to CDF and the other Real Parties.
2. CDF has opposed the Petition and filed an opposition with this
based upon the argument that this Court is without jurisdiction to grant the
Petition since there was an adequate remedy at law which would apply, and as
Court on a timely basis on June 27, 2003. That opposition in large part was
to the Writ of Mandate that there was no ministerial act of the Superior Court
of which this Court could order performed. Significantly, Petitioners did not
oppose any of those points. Petitioners' Reply filed on or about July 2, 2003,
is silent and presents no opposition. Therefore in the absence of that
opposition, an expedited hearing is necessary in order for the Court to
determine at its earliest convenience whether it has jurisdiction or can even
grant the Writ. Failure to grant an expedited hearing and continuance of this
Stay acts as a defacto preliminary injunction without bond, and may force CDF
to seek the appropriate writ from the California Supreme Court. An expedited
hearing on the merits would obviate the need for such a writ.
3. According to the declarations filed by all of the Real Parties, the
continuation of this Stay is forcing a hardship upon CDF and the remaining
Real Parties In Interest. The Supplemental Declaration of Charles W. Getz, IV
relays additional information on that point. The issues before this Court are not
so complex that they cannot be resolved by a short hearing and therefore the
Court should grant the expedited hearing.
Further, we ask the Court to lift or modify the Stay. The reasons for
this are also set forth in a Supplemental Declaration of Charles W. Getz, IV
1) CDF needs to have fallen timber removed for safety and
economic reasons. The timber which was fallen in good faith pursuant to
lawful contracts between CDF and the remaining Real Parties, poses a fire
danger as well as a safety hazard since it is not secured and lies as it fell.
Limited additional cutting may be required to gain access to the timber, but the
purpose of the modified stay would be to allow timber already cut to be
removed to prevent that timber from further deterioration, and becoming a fire
hazard as well as a safety hazard for those who may be hiking in the area.
2) Said timber will degrade over time and be less of an economic
asset. If the timber companies are unable to harvest or even remove fallen
timber until after August 20, the summer season will have effectively ended and
will be difficult for CDF to obtain necessary services to remove that timber,
even if the Court lifts the Stay after the August 20 hearing.
3) CDF is suffering a severe economic hardship based upon the
Court's Stay Order. All of the RPIs had a reasonable expectation based upon
the Stipulated Settlement in Campaign I that timber harvesting under these two
pre-approved timber harvest plans would go forward. This Court's Stay Order
which effectively acts as a preliminary injunction without bond or undertaking,
prevents these timber companies from executing upon their valid contracts, has
caused them severe economic hardship and CDF is informed, may result in the
cancellation of those contracts and the withdrawal of the timber companies. If
this occurs, CDF may be unable to secure timber companies to continue the
logging activities on these two timber harvest plans.
4) There is no chance that these timber plans will moot any of the
issues on appeal before this Court or in the lower court. Despite Petitioners'
mischaracterizations, the Stipulated Settlement in Campaign I has been violated
by these Petitioners and CDF has taken steps to bring this violation to the
attention of the lower court. The lower court has exclusive jurisdiction to
consider any contempt orders (Pacific Telephone and Telegraph v. Superior
Court (1968) 265 Cal.2d 370,372) and the Stay interferes with the ability of the
lower court to consider whether the Stipulated Settlement has been violated.
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. At
issue in Campaign II is whether the environmental documentation of an updated
management plan violated CEQA. This Court's Stay however prevents
operation of two timber harvest plans which were the subject of Campaign I,
a case which has been fully completed and is now final as to the parties. Under
that agreement, CDF had a right to proceed with timber harvesting after
meeting certain preconditions, which preconditions were met without dispute.
Petitioners' unilateral action in seeking a Stay from this Court prevents CDF
from operating under the terms of the Settlement Agreement and the lower
court recognized that CDF had a right to operate under the terms of the
Settlement Agreement in denying the Preliminary Injunctive Relief.
While these are issues which can be brought to this Court's attention
at oral argument, a lifting of this Stay in no way will prejudice the ability of this
Court to consider whether a preliminary injunction should have been issued as
to the project (the management plan, not timber harvesting) and further will
have no effect as to the ability of this Court to review any compliance with
CEQA, based upon what the lower court rules as to the merits.
Therefore, the Stay should be lifted immediately due to the severe
economic and safety hardships which are imposed upon Real Parties, or at the
least, should modify the Stay to allow any necessary actions to remove cut and
fallen timber from the harvested areas immediately.
The Court should note that two of the remaining Real Parties through
counsel James King have been advised of this application and to CDF's
knowledge do not oppose the application.
Dated: July 14,2003
MARY E. HACKENBRACHT
CHARLES W. GETZ
Deputy Attorney General
Attorneys for Real Party In Interest CDF