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Defense Of Necessity


As you have read elsewhere in the AVA, the Mendocino County District Attorney's office and I agreed to a settlement recently. I was represented in these negotiations by my attorney, Omar Figueroa of Sebastopol, who has represented me pro bono through eleven different pre-trial hearings and numerous settlement negotiations in the past six months. I consider the deal to be bittersweet, though certainly more lenient than any the DA's office had previously offered.

During the settlement negotiations, Deputy District Attorney Shannon Cox told my attorney she doesn't mind if I write whatever I want about the settlement negotiations. So, here are a few reflections on the plea deal, most of which Mendo's other major media oultets have already reported in some fashion.

After I was first hauled into court in shackles and chains last July 3rd, Mendocino County District Attorney David Eyster offered me a plea deal that included three trespassing infractions, “uncapped restitution fees,” and an order to remain at least 100 yards away from “Willits highway construction.”

I've maintained all along that any laws I may have violated in the course of protesting the Willits Bypass should at least be deferred until Caltrans is held to account for its far more egregious and important legal violations (see below). Unlike the US judicial apparatus, I actually take the Constitutional and international human rights principle of “equality before the law” seriously. Under this principle, all people are subject to the same laws of justice regardless of disparities of wealth and power. For example, that means Caltrans and its corporate contractors should be held to the same legal standards as I am.

At the same time, I was willing to compromise on that principle by consenting to the three infractions, being that taking on these charges would have entailed a draining legal fight. One has to choose one's battles wisely.

But I was unwilling to accept the “uncapped restitution” stipulation. DA Eyster was asking me to consent to allowing a single person — a judge — to decide how much money I owe Caltrans and the CHP, based on a claim from Caltrans and the CHP. I was the first Willits Bypass opponent against whom the DA had pursued such restitution fees. My case clearly was going to create a de facto precedent with regard to the judicial treatment of other protesters.

No way was I going to agree to pay an undisclosed amount of money, which might intimidate other people into standing down from their opposition to the Willits Bypass and other state-funded infrastructure projects.

I was also extremely uncomfortable with the stay-away order. I've been the only consistent on-the-scene reporter covering the details of the largest capital (and, for that matter, most destructive) project in Mendocino County's recent history, and I have a right to continue serving this role.

Ultimately, Assistant District Attorney Paul Sequiera played the “good cop” in the negotiations. He acknowledged that Caltrans' restitution claim, which ended up totalling $481,588, is “as inflated as hell.”

It wouldn't be judicious at this point for me to offer details on how each of our parties resolved the restitution matter, or describe the exact nature of our agreement, but suffice it to say that I am willing to accept it.

Sequiera also agreed to change my stay-away order so that I can be in physical proximity to the Willits Bypass construction zone along with every other Tom, Dick, and Harry in Willits who wants to congregate to shout things at Caltrans' contractors, harangue protesters for not submitting to wage slavery, or otherwise.

David Eyster posted on Facebook that I am on probation, but that is incorrect. Actually, I pled “no contest” to the charges. That is not an admission of guilt. I won't be reporting to a probation officer. Rather, I have agreed to what's called “a deferred judgment” whereby my two misdemeanors are reduced to infractions after two years.

Had my case gone to jury trial, my intention was to pursue what's called a Necessity Defense.

Such as defense allows a defendant who violated the letter of the law to be acquitted when they acted to further some greater good. At issue is not whether the defendant acted legally, but whether they acted morally.

Unfortunately, necessity defenses have not fared well in US courts in recent decades, and judges usually refuse to admit them. But such defenses serve as a powerful framework for evaluating one's actions, so I figured it was important to draw up a necessity defense regardless, even if I would never use this sort of self-aggrandizing language in any other context.

Necessity defenses must meet six criteria, as listed below. My attorneys prepared the following motion in consultation with me, and we would have presented it to Judge John Behnke at the pre-trial Motion in Limine had we not reached a settlement.

* * *

1. (He/She) acted in an emergency to prevent a significant bodily harm or evil to (himself/herself/ [or] someone else).

In a recent political and legal milestone, United States President Barack Obama issued a November 1, 2013 executive order entitled “Preparing the United States for the Impacts of Climate Change.” As journalist Will Parrish has articulated in his voluminous writings regarding Caltrans' Willits Bypass, vehicle-based transportation infrastructure has been ground zero for destruction of the global climate. Yet, while the nation as a whole is moving more proactively toward heading off climate change's impacts, the California Department of Transportation (Caltrans) is pursuing a highway the size of Interstate 5 around the City of Willits, which is based on false pretenses and has involved numerous legal violations.

Extrapolating from Caltrans' Willits Bypass project literature, the construction of the Bypass requires 380,000 cubic tons of CO2 emissions simply in the process of hauling fill — soil, concrete, asphalt, etc. — to the project area. This figure does not take into account gravel mining, cement production, or asphalt production, all of which generate considerable quantities of CO2, or the impact of further basing California's transportation infrastructure on automobiles.

In the May 20th edition of the Anderson Valley Advertiser, roughly one month before scaling the wick drain driver, Mr. Parrish wrote the following regarding his motivation for taking action to oppose Bypass construction:

“…the National Oceanic and Atmospheric Administration [has] announced that the level of carbon dioxide in the atmosphere has reached 400 parts-per-million... The scientific consensus is that any level above 350 parts-per-million will spell catastrophe for life on earth, as it entails the continued melting of the Greenland ice sheet and exponentially increasing methane releases from melting permafrost in Siberia and Alaska.

“Even with all the world at stake, society’s dominant institutions remain fixed in business-as-usual mode, continuing to expand their consumption of a finite planet at a rapid rate. In CalTrans’ case, that means forging ahead with the monument to waste and folly that is the Willits Bypass.”
The Willits Bypass is based on a US Army Corps of Engineers permit, issued in February 2012, that authorizes the largest filling of wetlands by any project in Northern California in the last 50 years. The Bypass project would fill 86 acres of wetlands, which are akin to the kidneys of Little Lake Valley. Mr. Parrish wrote in the same May 20th Anderson Valley Advertiser article,

“Though the Little Lake wetlands have been badly damaged across the past century and-a-half, they remain a vibrant and crucial ecosystem. They function in a manner akin to kidneys: absorbing the valley’s waters and slowly releasing them back into the system. As water flows through them minerals, sediments, and contaminants are absorbed and transformed by the plants, animals, and bacteria that occupy the many ecological niches therein.”

What is more, scientists point out that atmospheric maintenance is an additional wetland function. Wetlands store carbon within live and preserved (peat) plant biomass instead of releasing it to the atmosphere as carbon dioxide. Therefore, wetlands worldwide help to moderate global climatic conditions. On the other hand, filling, clearing and draining wetlands releases carbon dioxide.
The US Congress recognized the ecological importance of wetlands when it passed the 1972 Clean Water Act, a highly restrictive law that mandates approval of the least environmentally damaging practical alternative vis-a-vis any project that damages wetlands (see Section 2).

As both a citizen and a widely read and highly regarded environmental reporter whose words and actions exert a strong influence on hundreds of people throughout the North Coast, it was Mr. Parrish's ethical responsibility to call attention to the evils he knows the Willits Bypass poses to the collective well-being of people in Willits and throughout the world.

2. (He/She) had no adequate legal alternative.

Over the past three decades, Willits residents have pursued every possible legal avenue in an attempt to compel Caltrans to construct a smaller, less impacting solution to meet the stated goal of reducing delays for interregional traffic in and around Willits. These include the construction of a two-lane bypass around Willits, the use of an existing railroad corridor through Willits, the construction of in-town connector streets to reduce local traffic on Highway 101 through Willits, and the restriping/redesign of the Highway 101/Highway 20 intersection, which is the primary bottleneck for interregional traffic. Any of these alternatives would have significantly reduced or even eliminated many of the impacts of the freeway currently under construction, especially impacts to wetlands.

Local residents participated in every public hearing Caltrans conducted during the development of the Environmental Impact Statement/Environmental Impact Report (EIS/R) and attended all meetings of the Technical Advisory Committee that were open to the public. During all these meetings, local residents insisted that a freeway was not necessary to solve Willits’ traffic problems. When the draft EIS/R was published for comment, local residents submitted over 600 comment letters; the vast majority of which objected to the construction of a freeway bypass as being unnecessary, wasteful, and causing undue damage to the environment.

In 1998, local residents discovered that Caltrans included a criterion in the purpose and need statement that they used effectively to block any non-freeway alternative from further consideration as a reasonable alternative under NEPA and a practicable alternative under the Clean Water Act. The use of such a specific filtering mechanism (requiring the project to meet “Level of Service C”) in a purpose and need statement is in direct violation of the intent of the National Environmental Policy Act and the California Environmental Quality Act. According to the Council on Environmental Quality:

“In determining the scope of alternatives to be considered, the emphasis is on what is 'reasonable' rather than on whether the proponent or applicant likes or is itself capable of carrying out a particular alternative. Reasonable alternatives include those that are practical or feasible from the technical and economic standpoint and using common sense, rather than simply desirable from the standpoint of the applicant.”

Furthermore, regulations implementing Section 404 of the federal Clean Water Act (CWA) require that if a project involves the destruction of wetlands, the U.S. Army Corps of Engineers may only approve the least environmentally practicable alternative. The definition of “practicable” (40 CFR 230.404(b)(1) is:

“An alternative is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes. If it is otherwise a practicable alternative, an area not presently owned by the applicant which could reasonably be obtained, utilized, expanded or managed in order to fulfill the basic purpose of the proposed activity may be considered.”

Local residents have proven that a smaller, less-impacting alternative would have met every aspect of the definition of both “reasonable” under NEPA and “practicable” under the CWA. These facts were undisputed when residents presented this information to Malcom Dougherty, Caltrans Director, and Charles Fielder, Caltrans District 1 Director.

Since 1998, local residents brought this violation of NEPA and CEQA to the attention of Caltrans, the Federal Highway Administration, the Environmental Protection Agency, the U.S. Army Corps of Engineers, and Federal, State, and local elected officials. The lack of response from any of these agencies or elected officials in spite of clear evidence of violations of NEPA, CEQA, and the CWA, clearly demonstrates that there were no adequate legal alternatives to Mr. Parrish’s actions.

Mr. Parrish was aware of the history of these efforts at the time of each of his arrests (see Section 4). Most directly relevant was an article he published in the Anderson Valley Advertiser, June 5th, 2013, called “How CalTrans Sold The Willits Bypass.”

3. The defendant’s acts did not create a greater danger than the one avoided.

Mr. Parrish's actions posed no risk to anyone, perhaps save for himself. Mr. Parrish knowingly and willingly made the choice to endure his occupation of the wick drain driver because he recognized that the danger Caltrans' project pose to Little Lake Valley and to the planet transcend his personal well-being.

4. When the defendant acted, (he/she) actually believed that the act was necessary to prevent the threatened harm or evil;

Mr. Parrish has been painstakingly documenting Caltrans' legal violations in connection with the Willits Bypass since January. By the time of his wick drain “stitcher” occupation, Parrish had published seventeen pieces regarding the Bypass in the Anderson Valley Advertiser, each of which focused to varying degrees on the pattern of illegality that has attended Caltrans' efforts to gain regulatory approval for the Willits Bypass, as well as the construction activities that have issued therefrom.

There are four primary regulatory agency permits that authorize Caltrans to construct the Willits Bypass: the US Army Corps of Engineers 404 Permit, the North Coast Regional Water Quality Control Board 401 Permit, California Department of Fish and Wildlife (CDFW, formerly DFG) 1602 Stream Alteration Agreement, and the CDFW’s Incidental Take Permit.

As the only consistent on-the-scene reporter covering the Willits Bypass for any local news publication Parrish personally observed and reported on some of Caltrans' violations, noting the lack of accountability that the agency faced in connection with its activities in each of these cases.

In his January 30th, 2013 piece, entitled “The Warber & The Willits Bypass,” for instance, Parrish printed a thorough overview of the status of each of the aforementioned regulatory agency permits and noted that Caltrans was in violation of each of them in various ways, even before Bypass construction even began.

Regarding the 401 Permit, Parrish wrote: “Less than a month after it was issued, Caltrans violated the permit and again the next spring [see attached]. The permit references a Mitigation and Monitoring Plan (MMP) that has been substantially revised and is not finalized yet. Ninety days before 'vegetative removal or ground disturbing activities,' Caltrans was to complete conditions 15 & 16 (appoint a land manager and finalize money for mitigation). Caltrans has done neither, and in December 2012 the Water Board gave them until April 15, 2013 to comply and approved beginning construction.”

As of this writing, Caltrans still has not met condition 15 of this permit, yet the agency's contractors have certainly engaged in “vegetative removal” and “ground disturbing activities.”

Regarding the 404 Permit, Parrish noted in the same piece that one condition of the permit is that all the conditions of the 401 Permit are met, which they have not been.

In several pieces, Mr. Parrish excoriated Caltrans for not having studied the impacts of wick draining in Little Lake Valley, rather attempting to minimize perception of the impacts of this relatively unstudied technology. As he has noted, CalTrans’ lone allusion to wick draining in all of its environmental literature concerning the project was in Section 5.5.6 of its 2002 Draft Environmental Impact Report, which describes wick drains as “minor and isolated intrusions” into ground water.

The views of the regulators who oversee the project accord substantially with those of Mr. Parrish. On August 16th, US Army Corps of Engineers Chief Regulator Jane Hicks sent a “notice of non-compliance with permit conditions” to Caltrans District 1 Director Charles Fielder. Based on an on-site mitigation compliance inspection that took place while Mr. Parrish was occupying the wick drain driver, on June 25th, Ms. Hicks' staff noted five “Corrective Measures” she was requiring that Caltrans take. The first of these acknowledged that Caltrans had never studied the hydrological or epiaquic impacts of wick draining, precisely as Mr. Parrish had been pointing out. Her order stated, “By September 1, 2013, schedule a meeting between Corps staff and Caltrans hydrologists to discuss potential secondary effects from wick drains on wetlands hydrology, specifically shallow epiaquic saturation and groundwater through-flow affecting wetland hydrology criteria and duration in existing wetlands.”

The next four of these corrective measures involve violations of Caltrans' agreements concerning development of its mitigation plan aimed at compensating for destruction of wetlands.

On September 6th, the North Coast Regional Water Quality Control Board transmitted a strongly-worded, 40-page review of the Mitigation and Monitoring Plan (MMP) (ie, mitigation plan) that Caltrans submitted in April 2013. The cover letter to the review notes, “(Regional Water Board) staff has reviewed the California Department of Transportation's (Caltrans) Willits Bypass Project Mitigation and Monitoring Proposal dated April 2013 (MMP). We do not find the MMP acceptable at this time.” A condition of Caltrans' permit with the Water Board, and thus with the Army Corps, was to have a finalized MMP when construction began.

Mr. Parrish noted the following in a May 1, 2013 article in the Anderson Valley Advertiser, entitled “The Bypass ‘Mitigation’ Charade”: “Notwithstanding the particulars of how Caltrans’ wetlands mitigation lottery played out, it is worth bearing in mind that the entire project has violated the spirit and letter of the Clean Water Act from its inception. A 1990 agreement between the Environmental Protection Agency and the Army Corps establishes a three-part process, known as the 'mitigation sequence,' to help guide mitigation decisions and determine the type and level of mitigation required under the Act. The first step in this sequence is as follows: 'Adverse impacts to aquatic resources are to be avoided and no discharge shall be permitted if there is a practicable alternative with less adverse impact.’

“As I and many others have noted before, there are extensively documented practicable alternatives to the Willits Bypass proposal.”

With respect to one of the most infamous of Caltrans' violations, Mr. Parrish was even an actor in holding Caltrans accountable for its legal agreements with the California Department of Fish & Wildlife. On February 25, Caltrans’ contractors were attempting to install fencing in the southern portion of their intended Willits Bypass route to demarcate the construction area, so that they could begin cutting trees and removing brush.

Citizen bird monitors, including Mr. Parrish, discovered bird nests in the project construction swath. One of them notified the Department of Fish and Wildlife, which dispatched a biologist named JoAnn Dunn. Upon arriving at the site, Ms. Dunn called off the project for the day. Later, it turned out Caltrans hadn’t completed viable bird surveys, contrary to the claim of their spokesperson, Phil Frisbie, who was on-site at the time. Mr. Frisbie responded “yes” when asked if Caltrans was complying with bird survey protocols. Construction was delayed by over three weeks as the CDFW forced Caltrans to establish a bird survey protocol and conduct the surveys.

In the March 6 edition of the Anderson Valley Advertiser, in an article entitled “Protests Keeping CalTrans At Bay,” Parrish described the incident:

“Because members of the opposition [including Parrish] found freshly constructed bird nests right in the swath that Big Orange’s construction sub-contractor, Arrow Fencing, had just plowed with an excavator, [the California Department of] 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, its personnel 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 & Wildlife.”

Later in the piece, Parrish describes his filing of a California Public Records Act request to obtain a copy of the bird survey on which CalTrans' construction activities were based, which proved to be a laughably inadequate collection of observations deriving from two morning walks along a portion of the Bypass area by one biologist.

Parrish concludes: “What is notable is that it 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.”

In the piece, Parrish also notes: “Alternatively, the taxpayers would be better served if this… boondoggle and pending ecological nightmare were canceled altogether. As the events of recent weeks have demonstrated, it’s The Warbler and her supporters... 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.”

Meanwhile, Mr. Parrish had been involved with lobbying elected officials concerning the project since February. On February 20th, for example, he helped organize a sight-seeing tour of the Willits Bypass route undertaken by two of State Senator Noreen Evans' staff members. This tour, as well as meetings with Willits City Council members and a visit to The Warbler's tree sit in the Bypass route's Southern Interchange area, formed the basis for a letter Senator Evans sent to Caltrans Director Malcolm Dougherty on March 5th. In the letter, Ms. Evans wrote,

“There is a perception that Caltrans has refused to seriously look at other two lane alternatives. Has the agency thoroughly examined the Baechtel Road-Railroad Avenue Corridor, a route through Willits’ eastside industrial area that was initially the focus of a 2004 community-led study funded by Caltrans? Some participants in this study say that the route is a viable alternative for through-town traffic which avoids wetlands. This route has tremendous popular support, avoids environmental problems and could save taxpayers millions of dollars in scarce transportation funds. Are there reasons why it shouldn’t be seriously examined?”

In spite of raising these concerns, Sen. Evans has failed to take concrete actions to hold Caltrans to account for its legal violations or to pursue further her criticism about the availability of alternate, less costly routes through Little Lake Valley.

On May 1st, Mr. Parrish joined roughly 25 other residents of inland Mendocino County — including Willits City Council Member Madge Strong — in a meeting with Alexis Podesta, director of external affairs for Gov. Edmund G. (Jerry) Brown; Gareth Lacy, deputy secretary of communications & strategic planning for Gov. Brown; and Brian Putler of the Business, Transportation & Housing Agency to discuss alternatives to the Willits Bypass. During this meeting, Gov. Brown's staff people acknowledged that protests such as those Mr. Parrish has engaged in had been effective at getting the Governor's attention and making him aware of the project. Yet, in spite of the painstaking documentation of the project's fundamentally flawed nature, Gov. Brown has neglected to act to stop the Bypass.

5. A reasonable person would also have believed that the act was necessary under the circumstances.

As noted in Sections 2 and 4, people have been documenting and presenting to resource agencies, the public, and elected officials all the ways in which Caltrans has been misrepresenting the need for such an oversized project. These have included meetings and detailed communications with the US Army Corps of Engineers, State Senator Noreen Evans, US Congressman Jared Huffman, Caltrans Director Malcolm Dougherty, staff members of Governer Jerry Brown, staff members of the US Department of Fish & Wildlife, staff members of the California Department of Fish and Wildlife, and many others.

Neither Caltrans nor any other agency has ever been able to refute the evidence brought forward that shows that the justification for the Bypass was built on false information. Despite this massive documentation and outreach effort, not a single agency or politician has enforced the terms of their permits, held Caltrans to a standard of truth and accountability, or demanded Caltrans seriously consider a reasonable project in line with the traffic projected to use it. Mr. Parrish and many others who are intimately familiar with this process have come to understand that the public cannot depend on the public agencies (designated to protect wetlands) to enforce standards and permit conditions set forth by law, and there remains no choice but to call attention to these legal failings through actions such as those Mr. Parrish undertook.

For this reason, over 40 people have been arrested over the last few months, and hundreds of people have shown up at demonstrations opposing the Willits Bypass. In-depth, critical news coverage of the project has appeared in the Los Angeles Times, Sacramento Bee, San Francisco Chronicle, Santa Rosa Press Democrat, and many other print periodicals, as well as in regional, Bay Area, and national radio and television news programs. In an age of increasing environmental concern, climate change, decreasing traffic volumes, and changing traffic trends, reasonable people want reasonable solutions.

And 6. The defendant did not substantially contribute to the emergency.

As stated, the real emergency is the destruction of Little Lake Valley's ecology and economy, Caltrans' waste of taxpayer dollars, and this project's contribution to the global trend of climate change and wetlands destruction even as far less costly, less destructive, and perhaps even more effective means of addressing Willits' comparatively minor traffic congestion are clearly available.

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