On September 5th, the Mendocino County DA’s office issued this press release called: “Timber Operator Convicted of Violating Forest Practice Rules.”
“On August 31, 2001, Licensed Timber Operator CURTIS JOHNSON, of Tri-Tower Logging Company, was found guilty, pursuant to a plea of no contest, to two counts relating to forest practices. The first count was a violation of California Forest Practice Rule 1035.3(d) for failure to comply with a timber harvest plan requiring that the spoils of a bench cut be hauled away. The second count was a violation of Public Resource Code section 4601 for willfully failing to deposit and stabilize excess material from road construction so as prevent (sic) adverse effects to downstream beneficial uses of water. The violations took place in 2000.
“Judge Ron Brown sentenced Mr. Johnson to $2,000 in fines and 30 days in jail as a condition of 24 months summary probation, but allowed Mr. Johnson, who currently lives in Oregon, to do 240 hours of community service in lieu of jail because work release options are no longer transferable by Mendocino County to other states. Judge Brown also ordered Mr. Johnson to pay restitution to Ralph Bean Logging for corrective work in an amount not to exceed $6,333.50.
“The violations were brought to the attention of CDF by Henry Alden, the Forest Manager of Gualala Redwoods, which owned the property where the timber operations took place. They were investigated by CDF Division Chief-Forest Practice, James Purcell, and by CDF Foresters Mike McCay and Pam Lindsted.
“ 'I would like to commend Mr. Alden and the CDF personnel,' said District Attorney Norm Vroman, ‘for their fine work in investigating the case and obtaining prompt corrective action. Had they not acted promptly, there could have been serious environmental impacts. I would also like to put future violators on notice that our office will seek hard jail time for every conviction of the forest practice rules.’
“Case Name: People v. Curtis Clay Johnson. Case Number: MCUK-CRNT-01-42911-02.”
The Gualala-based Independent Coast Observer was the only County newspaper to pick up the DA’s press release, running it verbatim as an unbylined front page story in the September 9 issue under the title: “Logger fined and jailed for breaking forestry rules.”
The DA’s press release makes it clear that no one was jailed.
The case against Johnson, a gyppo logger from Oregon, was originally filed by Barry Vogel, the District Attorney’s former “Chief, Civil Division,” a position that was eliminated a few months ago. DA Norm Vroman said that because Vogel’s one-man division wasn’t a mandated function of the DA's office, the DA's chronically tight budget required its elimination. Vogel was originally appointed to the job on the assumption that fines resulting from Vogel's civil prosecutions would return enough money to the DA's office to fund Vogel's position. Vogel fined the occasional log truck driver for crimes like leaking too much oil but, and as per ancient Mendocino County practice, he did very little as a public employee other than draw his $80 thou salary and lobby for an appointment to the superior court seat recently vacated by Judge Conrad Cox.
In almost two years Vogel’s vaunted civil division had little to show for itself: Vogel discovered a drug store chain that was too slow in removing past-date vitamins from the shelves. Via a blizzard of indignant press releases, Vogel threatened to pursue Hawthorne Timber Co. (formerly GP) for refusing to provide crucial (and mandated) harvest and inventory lists to the County without taking action against Hawthorne. As always at one with a County legal contingent that trembles at the very thought of taking on the more formidable concentrations of power, Vogel valiantly issued a press release warning consumers to beware of the expiration dates on gift certificates. He successfully prosecuted a gyppo logger for a minor violation on a 14-acre timber harvest.
As he folded his failed civil division, DA Vroman told KZYX that Vogel had done some work against unnamed criminally inclined individuals that Vroman said was preventive in nature.
Courthouse gossip quotes DA Vroman as saying that Vogel has been his biggest mistake in office.
So what did Curtis Johnson, the Oregon logger, do to get himself prosecuted by Mendocino County's Javert of due dates?
Being from Oregon helped, as did being a small business person unlikely to have the resources to defend himself.
Officially, however, “This enforcement action was based on the licensed timber operator’s repetition of Forest Practice rule violations,” explained Mike McCay, a Boonville-based California Department of Forestry staffer and one of three CDF persons who cited Johnson. McCay said that the violations had “no significant environmental impacts,” but that there may have been some had they not been corrected prior to the winter rains.
“Our policy is to take legal action if there’s significant impact or if there’s repetition,” said McCay. “In this case, he (Johnson) violated the forest practice rules on three separate occasions over a relatively short period of time, and on three timber harvest plans.”
True, as the plot thickened.
McCay explained that two of the violations were discovered by the Resource Manager for Gualala Redwoods, Henry Alden, a fact mentioned in the DA’s press release.
“Mr. Alden notified our department that he found violations on his land,” McCay said. Having been alerted by Johnson's boss that Johnson had violated the rules, CDF drove to Gualala and recorded the violations. A third violation had been noticed by CDF forester Jim Purcell as Purcell conducted a post-logging inspection of another Gualala Redwoods logging job.
Alden, the resource manager for Gualala Redwoods, apparently hadn't noted the violations directly to Johnson, although he was often seen at the site where Johnson and his crew were working.
“There were three violations over a relatively short period of time,” said McCay, “so we took legal action.”
McCay said that by the time he saw the earliest violation it had already been “mitigated,” and the second and third violations (Count 2) were in the process of mitigation when he was on site.
“These are subjective judgment calls,” McCay concedes. “But it’s still a crime even if you fix a violation of the Forest Practice rules. We routinely issue at least an administrative action.”
McCay said that timber operators receive inspection statements for violations of the forest practice rules from CDF specifying what correction or mitigation is needed.
“If the violation is there, and he’s working to fix it, it’s still a violation,” McCay pointed out. “If he fixes it the next day, we’ll still record a violation. Each one is a crime. And we take legal action at a certain point. The rules are so complex that our operators get a lot of violations. It can be for little things too.”
McCay said that in cases like Johnson’s, repetition is what makes a violation rise to a chargeable crime. “You only get so many chances,” said McCay. “It’s at our discretion. We’re reasonable about it.”
McCay said that Johnson’s failure to haul out the dirt that had been pushed off a logging road where it would eventually find its way to a stream presented “a potential for significant impacts” if it wasn't corrected.
“He walked away from them,” said McCay. “And he had to fix them. If you push road construction dirt over a steep slope and it’s sitting there and the plan called for it not to be put there, and then the rains come and push it down in the creek, that would be very bad for the watercourse and the fish,” McCay elaborated. “When we arrived the dirt had not yet been removed. We observed the violations without corrective action being taken and so we required it. In the first case, the THP said he was supposed to haul the dirt away in a dump truck. He didn’t. He pushed it over the side, because it was easier… One of the piles had been mitigated when we got there and one of them had not been. The third (earlier) violation was observed by Mr. Purcell and a state geologist was called in to specify how it had to be mitigated.”
And it was mitigated.
But is failure to prevent dirt from going into the creek the sort of crime which can send a logger to jail?
“Jail is a sentence that is established by the legislature in the Z’berg-Nejedly Forest Practice Act for violations of the forest practice rules,” explained Deputy DA Tim Stoen who has assumed responsibility for unresolved cases left over from Vogel’s disbanded Civil Division, “so it would have been six months in jail on each of the counts if we really wanted to be draconian. We have to send a message to people who harm our environment that we’re not going to slap them on the wrist anymore.”
“If there’s willful intent to avoid the rules, it’s a crime,” insists Stoen, former County Counsel, former County Republican Central Committee member and a former supervisorial candidate who ran on a platform of green capitalism. “If he’s a scofflaw or looks like he was just purposely trying to bend the rules then we’re going to take it seriously. And this was a willful act.”
Stoen went on to explain that Johnson’s failure to haul out the dirt from above a stream bed had required that another logging outfit had to be hired to remove it at a cost of $6,333.50, hence the rather specific amount of gyppo Johnson's fine.
Stoen also explained that since Johnson faced jail and had hired a defense attorney and still pleaded guilty that that indicated that the DA had a good case.
“Mr. Johnson chose not to fight this,” said Stoen. “That should indicate to you that there was a good faith basis for Mr. Vogel having made that charge.”
“The impact of this crime on the community at large and on the fish is so great that we had to seek jail time,” insisted Stoen. “When a timber company hires [a gyppo] they expect them to follow the law. And he didn’t. And these were clear plans with clear instructions. So we didn’t feel bad asking for jail time. Mr. Johnson got a break because he lives in Oregon. If he lived here he’d be hearing the clang of a cell door.”
Stoen says he’s not aware of a landowner ever being charged with criminal violations of environmental rules.
Licensed timber operators or gyppos, the small, independent contractors who are hired by landowners and mill owners to cut down trees on a lowest-bid-gets-it basis know, however, that they're perennially caught between the bureaucratic hard place of forest practice rules and the big boys who hire them, and when push comes to shove, it is the little guy gyppo who's left to fend for himself.
Curtis Johnson’s logging company, Tri-Tower Logging, is based in Myrtle Creek, Oregon.
“My attorney wanted me to fight the charge,” said Johnson recently. “He said we could beat it hands down. But I live way up here in Oregon. It’s a ten-hour drive each way to Ukiah. When I got the initial notice from Mr. Vogel we discussed how to handle it. I sent Vogel some information explaining the situation. I put everything in writing. If you read the original paperwork I turned in it says that everything was mitigated above and beyond the requirements. I said, Yeah — it happened. But it was mitigated and I didn’t do any long term damage.
“I had a date to appear in court, but when Mr. Stoen took over for Mr. Vogel he told me I had to appear earlier or he’d file a warrant for my arrest! I told him I’d done everything they wanted so far and what was the problem? — but it didn’t satisfy him. So I went down there when he told me to appear, but when I got there the first time I wasn’t even on the court calendar. I wasted a whole trip down there for nothing. I came down again three days later when the date got straightened out.”
“The first judge I had,” continued Johnson, “he looked at the charges, and he started laughing. I don’t remember his name. He was white haired. Tall. Good looking, Big. Very big. An older guy. Maybe he was a retired judge. He was very smart. You could tell he’d been around. He had some common sense. He looked at the papers and started laughing. He said, ‘I don’t think this is going to last long.’ He asked me, ‘So this is all mitigated?’ I said, Yeah. And he looks around… but guess what? Mr. Stoen wasn’t there. It was a younger guy, a Mr. Davenport I think. Mr. Davenport said that nothing could be done because the DA’s office wasn’t properly represented. All he said was that Mr. Stoen was handling it. So it had to be put off again.”
Curtis Johnson made yet another trip for his first real hearing. This time Stoen was present, but the white-haired judge was gone and Johnson was facing Judge Ron Brown.
“When the hearing began I wanted to represent myself,” said Johnson, “I knew I could beat it, because I knew all the particulars. But Judge Brown said I couldn’t even represent myself! The judge told me that I didn’t know the in pro per (self-representation) law. I told him that I don’t need to know the law to explain what happened. All I need is some common sense and my mouth. But the judge said, ‘That’ll be enough of that in this courtroom — we’ll find somebody to represent you’.”
Ukiah defense attorney Richard Petersen happened to be in the courtroom at the time and saw Johnson’s frustrating encounter with Judge Brown. He approached Johnson and offered to take the case and Johnson, seeing no alternative, accepted. “I was pretty damn mad at that point,” admits Johnson.
More weeks went by. Johnson, by now an Oregon-California commuter, made more expensive trips to Ukiah. Paper was exchanged between him and the Mendocino County DA's office, and more delays from Mendocino County's heedless judges.
When it came time for CDF to testify about the violations at a subsequent hearing only Mr. Purcell showed up.
“Mr. Purcell only saw the one [earlier] violation which had been fixed to CDF’s satisfaction. So I asked Mr. Purcell, ‘Why are you wasting your time here? What are you doing here?’ And Mr. Stoen looks at him, and Mr. Purcell didn’t say anything, and then Mr. Stoen says, ‘I think 30 days in jail is appropriate for Mr. Johnson.’ And Justin Petersen, who was representing me that day because his dad was in another trial, says, ‘Do you realize that my client has never been in jail?’ And Mr. Stoen says, ‘He hasn’t?’ And Justin goes, ‘No.’ Then Mr. Stoen says that Henry Alden told him that I’m a bad guy! And I’m going, What in the hell? Why don’t you give me a chance to answer that? Call me, and talk to me before you buy that kind of thing. You gotta call Henry, of course, but call me and ask me about myself.”
What bothers Johnson is the casual manner CDF and the DA went about making the decision to charge him and then to recommend jail for violations Johnson had repaired. Then, to learn that the CDF-DA pincers had been clasped on the basis of remarks made by Johnson's boss who had not appeared in court… well, only in Mendocino County.
“They based this punishment on the frequency, the repetition,” explains Johnson. “You take that first one, the older one, away and look at the other two — they’re minute, hardly worth talking about. And they were being mitigated the day CDF told me they were going to write me up. And they agreed to the mitigation — CDF said I fixed it and that it was done right. They said the two violations that they went to look at that were reported by Mr. Alden were fixed or being fixed. On the first of those two, the only thing they suggested we do was put a couple of bails of hay at the bottom of this one ravine. And that was it! Anybody could have done that.”
Johnson soon realized that fighting the case would require too much time away from his Oregon-based logging operation.
“Time is really tough for me right now. I’ve got jobs I have to do up here in Oregon. I don’t have time to keep fighting in court in Ukiah. I’ve never dealt with anything so stupid in my life. I was so upset.”
Johnson says he finally decided to plead no contest if the court would let him do his 240 hours of community service in Oregon to avoid the Oregon-to-Ukiah commute.
Ukiah attorney Justin Petersen explains that “legally, a no contest plea means you’re not contesting your guilt or innocence but you’re letting the judge punish you as if you’re guilty so you can resolve the matter. It was a technical violation — he did at least some of these things they accuse him of. The question is: how serious an act was it? And I don’t happen to think it was very serious. The things were corrected immediately. And no actual harm was done. They just want to put the most law enforcement-oriented spin on it that they can.”
Johnson disputes that he owes anyone $6,333.50.
“They tabled that part,” he said, referring to the amount of restitution mentioned in the DA’s press release. “We explained to the judge that I don’t owe it and I’m not going to pay it.”
Judge Brown asked for a confirming letter. Johnson said he would ask Mr. Alden to provide it.
“Mr. Stoen told the judge that Mr. Alden thinks I’m not a reliable guy. I’m standing there and I’m goin’ ‘What in the hell? Call Henry! Call the 40 other mills I’ve worked for. I’m highly recommended’.”
So if the older violation was mitigated to CDF’s satisfaction and the second and third were minor, how did this situation become an environmental crime subject to jail time?
Johnson has a simple answer: “Two words — Henry Alden.”
“I told him about the things in the first place, and that I had to come back and fix them! I told him what we were doing. They aren't turned in if we fix them. But Henry ran down and turned it in. When CDF got there one was fixed and the other was being fixed. But that’s still a violation. Mr. Petersen told me these were ‘technical violations.’ And that’s why I plead No Contest — I couldn’t dispute that they were technical violations. But I never pled guilty.”
Johnson says his problems in Mendocino County began when Henry Alden took over as Resource Manager for Gualala Redwoods.
“Mr. Alden took over for Ollie Edmunds [the wealthy New Orleans physician who owns Gualala Redwoods’ 28,000 acres] over there and immediately started acting like everybody was against him,” says Johnson.
“I admit I told Henry things he didn’t like,” Johnson laughs. “I once said to him, ‘I bet you have your own kids punching time cards whenever they have a meal at your house, and if they have too many meals you charge them.’ I guess he didn’t like my joke about his penny-pinching. But I don’t mind that, all I ask is that he honor my contract.
“Mr. Alden took over the job of vice president of Gualala Redwoods a couple years ago, and he didn’t want anybody to deal directly with Ollie Edmunds, the owner. He wanted to be the boss. And I did everything he said. I never, ever, ever did anything that would imply he wasn’t the boss. I did everything he asked of me.
“But I did know Mr. Edmunds from way back. In fact, on these last two plans Mr. Edmunds specifically asked me if I’d come down and work them while they were being prepared — that was a couple years before Mr. Alden got there. Then Mr. Alden got there and they started really upping the logging rates. And they started the broadcast burning from the air.
“And I’m the criminal,” exclaims Johnson. “Can you believe that? I was so mad, in fact I was so upset the last day I was there in court that I had to admit something like that. The judge asked me and I just stood there and I looked at the judge and then at Justin [Petersen]. And Justin said, ‘Come on, Curt.’ And I said, ‘I’m having a real hard time signing this. Because I am not this way! My record’s clean. I have no prior complaints, much less convictions. This is the first one! No complaints, never. In seven years of work in California.’ I told them if three times is frequent, they should put these over seven years… but nothing. No response.”
Johnson points out that Oregon handles log road regulation a lot more sensibly than California does.
“The good thing about California is that the road work is all laid out,” says Johnson, “so there’s no doubt about what to do. But in Oregon, you just call the Oregon State Forestry Department and they come down and inspect on the spot. Oregon’s roads are better because they have to rock every road. If you have to use the road in the winter, they’re already rocked and stable. And watercourses are all culverted. In California they have all these dirt roads, and all these rules, but they side cast the water barring and it drives me crazy! There’s no reason for that. Just rock the roads! Make the timber owners go to the initial expense of rocking the roads, and then the roads are dependable and stable and you don’t have any slough. And you don’t have the water run-off problem or the silt. And Gualala Redwoods even has their own rock!”
And what’s the story behind the restitution penalty, money that would go to Johnson's replacement, a South Coast gyppo named Bean?
“It’s bullshit,” Johnson's attorney Justin Petersen says so emphatically that bullshit can be understood to apply to the entire case against the Oregon logger. “What happened here is that Mr. Johnson was doing this THP and he got into some kind of beef with Mr. Alden and Mr. Bean, and Mr. Bean somehow took over the THP and apparently Mr. Alden and Mr. Bean absolutely hate Mr. Johnson for reasons I never understood. Mr. Alden has some kind of problem with Mr. Johnson which goes back before this event.”
Curtis Johnson elaborated further.
“This is the best part of this whole story!,” explains an exasperated Johnson. “Ralph Bean was going broke, and I wasn’t getting along with Henry at that point. And I said, Henry, just be a man and put your balls up and tell me — those were my exact words — I said, You don’t want me here, do you? He goes, ‘I’d prefer you not.’ I said, OK, that’s fine. I’ll leave.
“Now remember, I’ve probably done 12 jobs for Gualala Redwoods in the last seven years, and CDF was happy with all of them.
“Anyway, Ralph told me he was going broke. And I told him, I’ll let you have the rest of the Dody Ridge job because I’ve got work back in Oregon — but on one condition: that you help me mitigate these things so we can have this all finished up before I leave. Ralph has an excavator that I don’t have. So we used his excavator and we worked together, getting all this road stuff taken care of before CDF came to inspect. I helped him by giving him the rest of the Dody Ridge job so he wouldn’t go broke. And he’s finishing that job this year.
“The next thing I know Ralph sends me a bill for all the stuff he did to help me! I told Ralph, You gotta be joking! Ralph said that Mr. Alden told him to send me the bill. But this is their road, their job. I had nothing to do with those charges. I couldn’t believe it!”
The claims of who owes who money for what are civil matters, not criminal.
“I couldn’t figure it out,” said Johnson, who thought he was merely trying to help a fellow logger. “I said to the DA, What are you, a bill collector for Ralph? Me and Ralph had this worked out and he got that Dody Ridge job. I don’t even know how Ralph got involved in my court case. And Mr. Stoen said, ‘Well this comes from Henry Alden.’ … ‘Oh,’ I said, ‘ok — now I understand.’
“I did everything that was required. There was no clean up left undone before I left the job,” Johnson insists. “And, I left $15,000 there in case there was anything left to do of my own free will. So I guess I have quite a rebate coming.
“What it boils down to is that they blame us for things they do. And it’s dead wrong,” Johnson sighs.
A coastal environmentalist who asked not to be named because of pending complaints against Gualala Redwoods adds another perspective to the shaft job Gualala Redwoods got the DA's office to do on Curtis Johnson.
“What probably happened is that Curt didn’t clean up something fast enough for Henry Alden so Henry turned him in rather than take the potential CDF rap himself; he turned it back on Curt. That’s my guess. If Johnson’s working under the management and employ of Gualala Redwoods, how could they not know what Curt’s doing with their roads? Especially with all the new road rules because of the fish, and all the foresters that Gualala Redwoods has.
“There’s been a concerted effort by Gualala Redwoods and Henry Alden to get taxpayer money through the Gualala Watershed Council to fix Gualala Redwood’s own bad roads. It’s up to almost $400,000 now including Fish & Game grants and Water Quality grants and CDF grants. And he’s using the [Gualala] Watershed Council to throw holy water on his grant applications.
“Henry substantially increased the harvest rates at Gualala Redwoods when he got here. It wasn’t even-age management [successive clearcuts] before him. Now, since Henry came in from Pacific Lumber, he’s turned up the knob. We call him ‘Mr. Napalm’ and ‘Mr. Herbicide’” — referring to Gualala Redwoods’ highly criticized but ongoing practice of dropping jellied fuel on completed clearcuts from helicopters, igniting it, then dousing the resultant bare ground with herbicides — a practice that produces a lot of loose dirt that runs off into the Gualala River and its tributaries.
“Henry probably figured out that it was time to cut Curt loose, and he might as well get some PR value out of doing it. Henry sees that there are going to be even more rules pretty soon and he’s trying to get as much as he can as soon as he can, like all of them do. I heard that Henry was reportedly run out of the Sierras with a lot of environmental complaints trailing him. So of course Pacific Lumber hired him. Then he got involved in the controversial Headwaters Habitat Conservation Plan and became very frustrated by the environmental complaints about the HCP implementation and threw his hands up and ‘retired’ to Gualala Redwoods. And I’m sure he’s got an arrangement where he gets a cut out of whatever GR makes. And if they can keep their logging costs down and their cut rate up, he gets more of it.
“Henry is a real schmoozemeister with a lot of public relations savvy. It wouldn’t surprise me if he looked at the situation with Curt and tried to get the best pr value he could out of getting rid of him.
“It’s pretty easy to blame the timber operator, the guy with the license. You can threaten their license, you can sue them in civil court. They have to be bonded. Henry wouldn’t have done this unless he thought he could come out of it looking good.”
“The Gualala watershed has become the poster child of the NCWAP (North Coast Watershed Assessment Program) and the TMDL (Total Maximum Daily Loads),” said the enviro, rattling off familiar acronyms. “It’s one of the most battered and hammered watersheds in the state. But since Henry got here there’s honeymooning and schmoozing and the manipulation of certain elements of the Watershed Council who are too close to being in bed with Gualala Redwoods. After pretending to go along with the Council, Henry recently denied the Regional Water Quality Control Board access to their statistical inventory analysis. That proves right there that they’re still playing by the old rules. Hiding their impacts. Playing hard ball.”
“I don’t think putting timber operators in jail for things like this is really going to help the Gualala watershed or the fish,” the South Coast informant speculated. “They all want us to think they’re tough on these things but it’s all bullshit. They let all kinds of things go all the time.”
And CDF’s apparent concern for the streams and fish?
“Well, let me put it this way: CDF has approved the conversion of hundreds of acres of prime timberland down here to grapes,” grumbled the coastal enviro. “And six more are already in the pipeline so far. And Mr. Joyner at CDF, one of the guys who’s processing the timber conversions, recently declared that permanently converting timberland to grapes is nothing but ‘crop rotation’! It’s crazy!”
“Just recently 14 acres was illegally converted near Annapolis. There was a big outcry from citizens pointing out how illegal it was. Mr. Joyner at CDF finally fined them $1,000 an acre. Then the owner turned around and sold the illegally converted 14 acres at a huge markup and the $14,000 was basically CDF’s fee for helping the sale! And then, when asked if the 14 acres could be reclassified back to timberland even though it was cleared, Joyner replied, ‘It’s not in our venue anymore. It’s not timberland. It’s ag land now. The trees are gone’.”
CDF forester Mike McCay realizes that there’s unfairness in the way some of these cases are handled. And he gets around the County woods and ranch land enough to know what’s going on with the land and the creeks.
“We still have a lot of loggers who are nonchalant about the THP requirements,” says McCay. “If it says in the THP that soil is supposed to be hauled away and it’s pushed over the side, where it can surely go in the stream, and it would have gone into the stream, then we have to do something. After all, people complain about us not doing enough.”
“But when you look around the woods now,” added McCay, “you see a lot of damaged watercourses out there — buried streambeds, trees skidded down them, no shade… And those streams still haven’t recovered. And the ranchers and home-builders around here — grape growers included — they blade open their roads. They cross streams. They run around all over with heavy construction equipment and the topsoil washes down when the rains come and it’s an horrendous amount of damage. And there’s no regulation on farm land or residential land, not even a grading ordinance.”
“There should be better regulation of all the land owners,” added McCay, “not the just loggers.”