Archaeological Resources Protection Act of 1979; Prohibited Acts And Criminal Penalties
SEC. 6. (a) “No person may excavate, remove, damage, or otherwise alter or deface any archaeological resource located on public lands or Indian lands unless such activity is pursuant to a permit issued under Section 4, a permit referred to in section 4(h)(2), or the exemption contained in section 4(g)(1).”
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As recently documented by Jennifer Poole in the Willits Weekly, Caltrans' deliberate destruction of an archaeological site in the path of the Willits bypass went unprosecuted by the Mendocino County District Attorney.
The 1979 Archeological Resources Protection Act provides for the seizure and forfeiture of property used in the commission of this deplorable crime — and everybody knows asset seizure and forfeiture makes lots of money for Mendocino County law enforcement. DA Eyster is a fool for seizing and forfeiting. But rather than grab Caltrans' implements of destruction, our DA went after the people trying to prevent Caltrans' plunder — The Save Our Little Lake Valley bypass protesters; chiefly, local journalist Will Parrish.
The prosecution of Parrish was inspired, we learned this week, by a series of press releases sent out by CalTrans, wherein Big Orange complained about how much money the protesters, and especially Parrish, was costing them. The latest offer to settle the case against Parrish hinges on his agreeing to own up to $490,000 in damages claimed by Caltrans but only two counts of trespassing. Part of this absurd sum is charged to Parrish on a day when 50 protesters occupied a work site and Parrish was not present.
Besides which, Caltrans wacky spokesperson, Phil Frisbie, has continually and publicly insisted that the protesters weren’t really “delaying” the job or getting in the way of the contractors who just went on and did other work. So, Eyster and Big Orange can’t have it both ways because the real delay has been due to Caltrans screw-ups not the protesters. Caltrans’ tried to bulldoze through the Migratory Bird Act to top trees after nesting season had begun. The ensuing delay was Caltrans not getting its permits in order until later than the first expected start date of Fall 2012. But Caltrans started early anyway even though they knew it was bird season, and they hired so-called “biologists” who wandered around deliberately not finding nesting birds. Caltrans caused the big delays, not the protesters, and certainly not Parrish.
Who spent a lot more than the $1 million-plus that has been cited? The California Highway Patrol, and I don’t think any rational body could target Parrish alone as responsible for that expenditure. Eyster and his Big Orange pals would have to prosecute the whole protesting gang.
The defense had a surprise witness, an impressively credentialed person who'd come down from Washington State to testify for the young reporter. She said she'd watched as Parrish was arrested in the middle of Highway 101 and then dragged and carried onto the property he was supposed to have trespassed on.
This presented the court with two new problems: A false arrest, and an officer lying on the stand. The court chose to ignore them both, and concentrate instead on complex legal wrangling rather than the simple facts of false arrest and lying under oath.
But before Judge Behnke got to Parrish, he had to deal with a couple of the County’s famously inflated egos in the form of Pete Richardson and Dan Hamburg. These two characters had had their cases moved to Judge John Behnke’s court because Judge Ann Moorman was absent.
When Pete and Dan entered the courtroom and saw all the hippies sitting around, they seemed to assume the big turnout was for them, and proceeded to work the room like a couple of grand eminences, shaking hands and thanking everyone for showing up. But when some killjoy broke the news that the turnout was in support of Will Parrish, Richardson graciously absorbed the news that the gallery hadn't assembled for him; but Hamburg shot death glares at Parrish then, as he noted my presence, reloaded and riddled me with a whole magazine of them.
Peter Richardson had just had his second marijuana cultivation case resolved in a manner favorable to him, and was about to start a short term of house arrest at his pleasant digs out near Russian River Estates when he was pulled over for expired license plates. On his way to the DMV to get square with the vehicle code, Pete stopped at a bar for a few drinks, managing to inflate expired plates into his third DUI. And this third time around his blood alcohol content was nearly double the legal limit.
Richardson’s lawyer, Keith Faulder, had already interceded to keep Richardson’s driver’s license from being revoked, and now Faulder was asking that his client’s surrender date to the terrors of home arrest be extended for two more weeks so Richardson could drive himself south for medical appointments.
DA Eyster said he thought letting Richardson loose on the roads amounted to a public safety risk, and said it might be better if Richardson’s wife drove him to the medical appointments in San Francisco. (Richardson’s wife works at Mendocino Child Protective Services, so the guy's medical bills are covered by County employee health insurance.)
Richardson has just returned from New York where he says he went motorcycle riding with Billy Joel. His family has money, lots of it, and Pete gets to sit on a scholarship board with some of his cousins. His family paid for the trip. Pete was down at the Water Trough bar the day he picked up his third DUI, talking about his excursion with the famous singer. Many of the craftsmen and sub-contractors he owes money to were present, and none of them feel much sympathy for the predicament he’s gotten himself into now.
Judge Behnke was inclined to agree with DA Eyster on the public safety issue, but Faulder successfully argued that his client could be trusted to drive to the city to see his doctors, and reluctantly the judge granted permission. (Funny how justice is more understanding for the well off and the well placed, isn’t it?)
Then, conveniently, Behnke bows out and here comes Judge Brennan, a stoner dude, to hear the Hamburg matter. Hamburg, of course, is also a stoner dude. It can be quite cozy in the Mendocino County Courthouse.
Fifth District Supervisor Dan Hamburg was in the courtroom because troubled his son, Matthew Hamburg, was being sentenced for an incident which resulted in his arrest by the Ukiah Police Department. A disposition was worked out between prosecutor Matt Hubley and defense attorney Katherine Elliot in front of Judge Brennan where there would be no prison time at the outset, only a jail sentence with credit for time served and a grant of probation. Also, there would be $6,920 in restitution to the Ukiah Police and a fine of $5,000. But due to the younger Mr. Hamburg’s limited means — his father’s 46-acre no mortgage property, $62,000 a year as supervisor and the goddess only knows how much tax free cash from the family's marijuana business — Judge Brennan suspended $4,000 of the fine.
That was two major judicial breaks in a row, one for Richardson, one for Hamburg, fortune's favored children.
Ms. Elliott, Hamburg’s attorney, was saying something about the only way a mental patient could access the new mental health programs was through an encounter with law enforcement, and at this point, Supervisor Hamburg, seated nearby with his new girlfriend on one side and his daughter on the other, reached across his daughter Laura to where I was sitting and began shaking me violently by the arm and hissing, “You suck, you suck — you’re sick, you fuck!”
Was the Supervisor was trying to access some mental health treatment for himself?
The bailiff, Deputy Frank Rakes, paid no attention to the commotion. Laura Hamburg pushed her father back in his seat, and shortly afterwards daddy left the room, displaying no interest whatsoever in the Will Parrish matter. Laura Hamburg apologized to me for her father’s little flip out, and she too left the courtroom.
When the Parrish case resumed, Parrish’s attorney Omar Figueroa called Rachael Britten, an employee of Ecology Action and a graduate of Evergreen College in Washington. Ms. Britten had volunteered to come to the Willits bypass protest “to bear witness.” She'd seen Parrish's arrest by Officer Hossford of the California Highway Patrol.
During the first installment of this hearing a few weeks ago, Officer Hossford had told the court how on April 2nd Mr. Parrish had crossed Highway 101 and trespassed on Caltrans’ property, prompting Hossford and two other officers to tackle and arrest Parrish, inflicting “a couple of minutes, at least” of pain-compliance techniques on the unresisting journalist.
“Did you see Will Parrish being intercepted by the CHP officers?”
“Yes,” Ms. Britten said. “I was standing on the west side of Highway 101 across from the tree-sit where the public was being allowed to gather. I saw Will step out onto the highway. He was approached by law enforcement officers and arrested, then physically moved to where the law enforcement officers were parked.”
“So he was arrested on the highway?”
“So if somebody came to court and said he came all the way across the highway and was then arrested, would that be true?”
Judge Behnke turned to Matt Hubley, but the deputy DA (who has recently relocated to the Sonoma County DA’s Office where pay and perks are better than Mendo's) declined to cross-examine the witness and defend his officer. Ms. Britten, having come all this way, and having waited patiently in the hallway all morning, was excused.
Behnke then addressed Mr. Figueroa: “You have the burden, counsel. You’ve given a very general statement of what you’re trying to suppress.”
“As for the April 2nd arrest,” Figueroa said, “I would like to suppress the observations of the officers that the officers made of my client while he was squirming on the ground as a result of the pain-compliance — and any statements he may have made.”
DDA Hubley reserved his arguments.
“The force used was significant. Mr. Parrish was squirming on the ground; we’re saying he was squirming in pain, not in an attempt to resist arrest. We’re arguing it was punishment in the field, before any due process of the judicial system had convicted him of any crime. Mr. Parrish did not climb any fence, go through any gate, or in any way trespass — which is not the testimony of Officer Hossford, that he [Parrish] came all the way across and entered the property and then was dragged back to the middle of the road. There was no arrest warrant, no search and seizure warrant. Then we have the search of what was in effect his home on July 1st, an encampment, a sheet of plywood, a tarp, a bucket, food articles and blanket. We would not be having this hearing if law enforcement had gotten an arrest warrant.”
Hubley said, “I guess I’ve been listening to the arguments and trying to figure out if this is a 1538.5 or an expectation of privacy. Where he was intercepted has no bearing that I can see.”
Behnke said, “It’s basically true that there can be a defense to resisting arrest… Lemme think about that, though.”
“I don’t think the arrest was unlawful,” Hubley said. “And as for the expectation of privacy, that’s absurd; an absolute absurdity. Go down to Mr. Eyster’s office and set up camp and see how much privacy you can expect! He had no reasonable expectation of privacy, and I’ll submit it on that.”
“The way I see it,” Behnke said, “is that the occupation of the wick drain crane was the most significant issue before the court. In the People v. Houghton, the homeless person living in a cardboard box had a reasonable expectation of privacy, and, um, Witten talks about a trespasser on public land as having no reasonable expectation of privacy. But what Mr. Parrish was doing was the antithesis of privacy. He was making a public statement, so I basically find there is no expectation of privacy that would render a violation of his rights. What then happens is the SWAT team got up there — they have a right to do that. Then Mr. Parrish locks himself down. He was eventually brought down, but he wasn’t trying to live there, he was trying to delay the project — which he did successfully. And the local officer who made the arrest on July 1st, frankly, seemed like a real gentleman. I don’t see any indication of Mr. Parrish being stressed out at that time, so I won’t suppress anything that happened on that occasion.”
Behnke put his eyeglasses on and examined some pages on his desk, a copy of the transcript provided by defense counsel. He said, “As for the April 2nd arrest — was that the one involving Officer Hossford?”
“Yes, your honor.”
“It’s not clear to me whether that’s a lawful or an unlawful arrest; and it will have to go in as a jury instruction, if this should go to trial. … I just don’t know… That may be an unlawful arrest. There may be some issue as to disobeying a peace officer, but I can’t make that determination in this proceeding… They’re allowed to make observations, so I’m not going to suppress any evidence in that context, but I’m open to argument of the unlawful arrest. As for the March 21st arrest by Officer Denham if anything was seized from Mr. Parrish, I will suppress that. That testimony was so unhelpful — and I don’t think it had anything to do with resisting — but if they took anything from him I’ll suppress that. Again, I don’t see that testimony as being helpful and prosecution has the burden of proving the arrest was lawful."
“So those are the rulings I have. November 12 is still set for the trial?”
Hubley said, “My most recent offer was two counts of trespassing, 36 months of probation, a 100-yard stay-away order, and restitution in the amount of $490,000 as requested by CalTrans. And we would have no objection to converting the two 555s (trespassing misdemeanors) into infractions on successful completion of the probation.”
“I’ve never heard of misdemeanors being reduced to infractions,” Judge Behnke said. “But I have no very strong feelings about it so I would likely approve it.”
Mr. Figueroa said, “The restitution was the deal-breaker for us. Mr. Parrish would be willing to plea to three 555s and pay $1,000.”
Motions in Limine (a last chance to present motions before trial) was set for November 7th.
DA Eyster must be planning to go to work for Caltrans when he loses the next election, otherwise he’d drop this farce and prosecute Caltrans and their spokesman, the ineffable Phil Frisbie, for the destruction of an archaeological site. But we understand that Eyster says he'll keep after Parrish until he gets a conviction. ¥¥