[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,

Petitioners

V.

SUPERIOR COURT of MENDOCINO COUNTY,

Respondent.

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.

A102405

IMMEDIATE

ACTION

REQUESTED

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

Stay.

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

filed herewith.

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

Respectfully submitted,

BILLLOCKYER
Attorney General of the State of
California

MARY E. HACKENBRACHT
 Senior Assistant Attorney General

                                              

CHARLES W. GETZ
Deputy Attorney General

Attorneys for Real Party In Interest CDF