Had it not been for a direct action last week by supporters of The Warbler's tree sit south of Willits, this would have been the week CalTrans and its contractors dispatched crews with chainsaws and heavy equipment to mow down oak, madrone, manzanita, Oregon ash, and pine trees on the east side of Little Lake Valley, as a step toward construction of Big Orange's planned new superhighway through Willits.
In conducting research for this story, I obtained a letter written by CalTrans Senior Resident Engineer Geoffrey T. Wright to the California State Water Resources Control Board, dated February 21st, with an update on CalTrans' construction schedule. The following paragraph is the letter's kicker.
“Caltrans and our Contractors will begin work Monday, February 25, 2013, by initially attending the environmental awareness training, proceeding with installation of construction area signs, and placement of the Environmentally Sensitive Area, as well as the required Best Management Practices. The following week, the contractor will begin clearing operations within the ESA fenced areas.”
In this case, “clearing” is a euphemism for cutting trees and stripping other vegetation from hillsides and meadows across a roughly 200-foot wide area that spans over 1.5 miles. Instead of devouring the trees, however, CalTrans and company have barely bothered to show up this week in the area in question, as of press time. Based on requirements the California Department of Fish and Wildlife is placing on CalTrans under the 1927 Migratory Bird Treaty Act, Big Orange now may not be able schedule the construction again for at least a month.
It is all part of the fall-out of the direct action that deterred CalTrans' so-called Environmentally-Sensitive Area fence last week, which I described in last week's edition of the AVA. Because members of the opposition found freshly constructed bird nests right in the swath that Big Orange's construction sub-contractor, Arrow Fencing, had just plowed with an excavator, Fish and Wildlife are forcing CalTrans' scofflaws to stick to the spirit and letter of their own Environmental Impact Report (EIR) for the project.
Section 4.8.3 of that EIR reads as follows: “Pre-construction clearance surveys for nesting sensitive bird species would be conducted by a qualified biologist no less than 30 days prior to the start of vegetation removal. Vegetation removal would be performed during winter where possible to comply with the Migratory Bird Treaty Act. Survey results would be provided to [California Department of Fish and Wildlife]... upon completion of each survey. If sensitive species were found nesting in the project area or within 0.5 mi (0.8 km) of it, Caltrans would consult with the resource agencies to develop a strategy to further minimize the project impacts to these species.”
Yet, rather than abide by these terms, it appears that CalTrans' honchos in Eureka and Willits sought to take a route around them altogether – bypass them, you might say. When Big Orange initiated construction of its fence demarcating the highway's construction area last week, it had not so much as created a protocol for surveying the construction zone for bird habitats, let alone completed a legally binding habitat survey approved by Fish and Wildlife.
Of course, that's contrary to what CalTrans spokesperson Phil Frisbie, Jr. publicly stated, in an exchange captured on video during the effort to construct the fence last week. The exchange, along with a variety of other juicy footage from the day, is in an online video located at http://tinyurl.com/bt2de7f.
According to Frisbie, Jr., CalTrans had conducted a bird survey of the area that “state agencies” had signed off on. A few minutes after Frisbie, Jr. made this claim, I dialed his office from my cell phone and filed a California Public Records Act Request to obtain the bird survey.
Although the material Frisbie, Jr. sent me demonstrates that his answer was extremely misleading, at best, he was very prompt in fulfilling the request. The survey he sent me, dated February 21st to 22nd, was conducted by a supposed biologist employed by the notorious outfit SHN Consulting, or SHN Engineering, which has an office in Willits on the 300 block of Main St., in the former Mason building.
SHN's web site describes the company as a “science-based consulting firm providing engineering, environmental, geoscience, planning, and surveying services throughout Northern California and Southern Oregon.” SHN is well remembered by long-time environmental activists for its whitewashes Maxxam Corporation, the large conglomerate that clear-cut North Coast redwood and Doug fir forests at a record rate in the 1980s and 1990s.
Out of roughly one and one-quarter pages of text, the “survey” (which will be posted at the web site www.savelittlelakevalley.org) includes about eight sentences that make reference to birds. It notes sightings of Red-Tailed Hawks and Coopers Hawks and unspecified nests near the construction area. The surveyor, whose name is Warren Mitchell, seems to have devoted a few hours to report, at best. The Department of Fish and Wildlife had not signed off on the ridiculous document, as Frisbie had claimed.
Since Mitchell apparently didn't have enough other material to ensure the written portion of his report cracked a page, he even saw fit to throw in the following paragraph: "Observed three individuals in the area of the Caltrans storage yard. One female near the Haehl Creek crossing who turned around and headed back toward the 'Warbler Protest Camp' and two males in the area where the CPH was observed."
It's barely even worth noting at this point that Frisbie, Jr. was lying or, at best, extremely ill-informed about the significance of the survey. What is notable is that took a group of protesters finding nests to compel the California Department of Fish and Wildlife (CDFW) to hold CalTrans to account for following its EIR and the Migratory Bird Act. Under new terms imposed by CDFW, CalTrans cannot resume construction until it updates its bird surveying procedures and submits a full report.
To place fully into context CalTrans' aversion to treating the nesting bird provisions seriously, let's return to the scene of last Monday, February 25th. Once CalTrans' hired biologists showed up to survey the nests, the scene became a theater of the absurd faster than a peregrine falcon performing its stoop. CalTrans Associate Environmental Planner Jerome Washington, who was the very picture of sluggish disinterest as the fence work was actually occurring, came alive for long enough to declare the first nest to be most certainly fabricated and planted by the protesters Since he hadn't seen it when he walked the area, he claimed one of the citizen monitors of the area, who were essentially doing his job for him, must have planted it there.
CalTrans next trotted out its hired gun from the firm SHN Consulting, who was likely Warren Mitchell, the same alleged biologist who filed the aforementioned joke of a bird survey on which CalTrans said it was basing its construction. Mitchell wasted no time in concurring with Mr. Washington that both nests were fakes. He even picked up the first nest he came to and crumbled it, or allowed it to crumble, in his right hand.
"Real nests -- they don't fall apart,” he announced. “It has no structure to it, no feathers." Mitchell declared the second nest a phony without having so much as having given it a sideways glance. Mitchell then claimed simultaneously that the nest might be a bird's nest, but also that it's not a bird nest.
In reality, the discovery of the first nest happened as follows. Willits resident Malakai Schindel and I had both spotted two small gray birds, which may have been wrentits or oak titmice, flying away from a pile of brush Arrow Fencing's excavators had just plowed through. Schindel dug beneath the brush and discovered the nest. It was evident the birds were in the midst of constructing the nest when they flew away.
If the CalTrans people accusing protesters of planting the nests had actually bothered to conduct a bird survey, one supposes they might have realized both nests were actually real bird nests, constructed by real birds living in what became the ESA fence's swath of destruction.
One of the entities that has been most instrumental in advancing the Willits superhighway project is the Mendocino Council of Governments (MCOG): the regional transportation planning agency affiliated with the Mendocino County Board of Supervisors. MCOG has ponied up approximately $20 million in precious regional transportation and planning funds to support the new superhighway.
At its meeting this past Monday, MCOG's board of directors, including Chairman Dan Gjerde and John Pinches, discussed the bypass as the last item on its agenda. Opponents of the Bypass who attended the meeting attempted to convince MCOG to use its authority to make public the letter from the Army Corps of Engineers that authorizes CalTrans to move forward with construction activities, which members of the opposition have been unable to obtain despite filing a Freedom of Information Act (FOIA) request for it at least a few weeks ago. Gjerde gestured meekly in support of the project's opponents by suggesting that a letter from MCOG include a request to post these letters on a website.
According to Rosamond Crowder of the Willits Environmental Center, who attended the meeting, “Mr. Pinches got really hot under collar about the terrible protesters and how it was an active construction site, and trespassing should be dealt with harshly.” Pinches later barked a bit at the CalTrans man on the phone and asserted that MCOG should write a letter to CalTrans saying they need to “deal with” these protestors and not cost the taxpayers with delays.
Alternatively, the taxpayers would be better served if this nearly $400 million boondoggle and pending ecological nightmare were canceled altogether. As the events of recent weeks have demonstrated, it's The Warbler and her supporters – who have collectively delayed this project by perhaps two months already – who are most effectively guarding the taxpayers' interests, as well as those of the birds, trees, wetlands, and local residents who would have to live with this hell.