Eastern District of California Blog

Fireworks Aplenty In Moonlight Wildfire Case

Denny Walsh's piece in the Sacramento Bee tonight reports on the latest legal skirmishes in the Moonlight Wildfire civil case, including the government's motion to recuse lawyers for Sierra Pacific Industries after they leveled misconduct allegations against the EDCA U.S. Attorney's Office.  What I found most interesting is this excerpt explaining that 9th Circuit Chief Judge Alex Kozinski rejected EDCA Chief Judge England's order recusing the entire EDCA district court bench:

The case has caused some upheaval in the operation of Sacramento’s federal court.

After Sierra Pacific filed the motion to throw out the settlement, U.S. District Judge Kimberly J. Mueller asked to be removed from the case, which she’d been presiding over for nearly four years.

As a consequence, Chief U.S. District Judge Morrison C. England Jr. wrote an order recusing every judge in the Sacramento-based Eastern District of California and asking Alex Kozinski, chief judge of the 9th U.S. Circuit Court of Appeals, to appoint an out-of-district judge.

But Kozinski refused, noting that the circuit court’s policy is to not bring in a judge from another district unless there is both an order recusing the judge assigned to the case and a certification from the district’s chief judge that every judge in the jurisdiction has been offered the case and refused to take it.

Mueller then wrote an order recusing herself.

Some of her fellow judges were unhappy that she dropped the case and have vented their feelings in emails circulated among the justices.

The case is now in the hands of U.S. District Judge William B. Shubb, the district’s senior judge. He has scheduled a status conference for Monday.

SacBee, 11/18/14

 

 

Chief Judge Orders Recusal Of All EDCA Court Judges From Moonlight Fire Civil Case

In this Order, Chief Judge England has ordered the recusal of all EDCA district judges in the moonlight fire civil case. See my 10/10/14 monlight fire post.

U.S. Attorney Moonlight Fire Case Cover-Up Alleged

Here's bits and pieces from today's front page story in the Sacramento Bee:

The incendiary legal battle over responsibility for the Moonlight wildfire, which scorched 65,000 acres in the Sierra Nevada seven years ago, has flared anew with charges of corruption and cover-up leveled at federal prosecutors, and state and federal investigators. [2:09-CV-2445-KJM].

The allegations are contained in hundreds of pages of documents filed Thursday in U.S. District Court in Sacramento seeking to wipe out a 2012 settlement calling for timber giant Sierra Pacific Industries to pay the federal government $47 million and deed it 22,500 acres of its land to compensate for the devastation of more than 40,000 acres in two national forests in Plumas and Lassen counties, as well as the U.S. Forest Service’s firefighting costs.

* * *

On Thursday, the company took the rare step of asking Mueller to “vacate the settlement” due to “fraud upon the court.”

* * *

It insists in its motion that the investigators’ origin-and-cause report is a fraudulent document that omits or distorts all information that might have hurt the government’s case.

One of the documents Sierra Pacific filed is a declaration from a veteran former assistant U.S. attorney, who says he was forced to give up his position as the government’s lead lawyer in the Moonlight case, apparently because he rebuffed pressure from a superior to “engage in unethical conduct as a lawyer.”

* * *

His declaration describes his conclusion in connection with another wildland fire recovery matter in 2009 that he was ethically obligated to disclose a document to the defense that called into question the viability of the government’s prosecution.

He sought confirmation from the U.S. Department of Justice’s professional responsibility advisory office, which “strongly supported my view. … As a result, we dismissed that action,” the declaration says.

Later in 2009, it says, a dispute arose between Wright and Shelledy in the context of another wildland fire case over whether the office had an obligation to disclose to the defense the fact that the Forest Service had miscalculated the damages, which were $10 million less than the government was claiming.

Wright again sought the advice of the professional responsibility office and again the office supported his view that the error had to be disclosed, according to the declaration.

* * *

At this point, it says, an attorney in the professional responsibility office weighed in “with a directive that could not have been clearer: ‘Part of the issue in making a false statement means not only an affirmative misstatement but deliberately withholding information which refutes the position you assert.’ ”

The information was turned over to the defense and the case settled.

* * *

Although Sierra Pacific agreed to a settlement in 2012 to end its legal fight with federal authorities, it has always contended the fire investigation was flawed and that investigators manipulated evidence and lied under oath about where and how the blaze began.

According to Sierra Pacific, the government could reach into the company’s deep pockets for a big recovery only if it could blame the company for the fire, and that is what motivated investigators to move the blaze’s place of origin to the area where the bulldozer was working and then falsely deny they had originally settled on a different location.

Feds Announce Details In Moonlight Fire Settlement

U. S. Attorney Benjamin Wagner announced this morning what he described as the largest recovery - $122.5 million - ever obtained by the government for damages caused by a wildfire.

In what Wagner described as a "creative' settlement, he said the defendants in the government's lawsuit will pay $55 million in cash and Sierra Pacific Industries Inc., targeted as the most culpable defendant and the largest private landholder in California, will convey 22,500 acres of its land to the United States.

Wagner said that land is conservatively valued at $3,000 an acre.  The Moonlight fire ignited on Labor Day of 2007 and raged across the northeast sector of the state for two weeks, laying waste to 65,000 acres in Plumas and Lassen counties, including 46,000 acres of national forest. It was one of the most devastating wildfires in California history.

Sac Bee Blog, 7/17/12

Feds Settle Moonlight Fire Suit

The dispute that turned into a legal free-for-all over who started one of the most destructive wildfires in California history was settled Thursday.

The United States' lawsuit against Sierra Pacific Industries, the largest single landholder in North America, and others was scheduled to go to trial last Monday before U.S. District Judge Kimberly J. Mueller. But U.S. Magistrate Judge Gregory G. Hollows agreed to make a last-ditch effort to resolve the case, and the trial was delayed for one week.

The terms of the settlement were not disclosed.

Sacramento Bee, 7/6/12

Sacramento Bee Uncovers Forest Service's Cover-Up Of Moonlight Fire Lookout's Alleged Marijuana Use

The Moonlight fire was the U.S. Forest Service's worst nightmare.

For two weeks in September 2007 it raged like a fire-breathing dragon across 65,000 acres in Plumas and Lassen counties, devouring everything in its path, including 46,000 acres of lush national forest.

But there is an additional troubling dimension to this catastrophe, one that, like the fire itself, still haunts the Forest Service. From the start, there was a recognition of potential legal complications if it became known that a Forest Service patrol officer claimed another agency employee may have been smoking marijuana while he manned the lookout tower closest to the site where the fire started.

That fear has now been realized. A timber company being sued for causing the fire has filed documents in court that reveal the government tried to cover up the claim, causing dissension within the Forest Service.

Long before the devastating wildfire was contained, federal and state investigators were satisfied that a bulldozer belonging to a company harvesting timber for Sierra Pacific Industries hit a rock and a spark flew into dry duff on private property.

Sierra Pacific and the logger, Howell's Forest Harvesting, strongly dispute that.

The final report on the fire, publicly released on June 30, 2009, included no mention of suspected marijuana use by the Red Rock lookout the day the fire started.

In court papers, Sierra Pacific lawyers describe the report as "completely sanitized."

Yet, their cooperation and that of two federal judges was enlisted by assistant U.S. attorneys in sealing and redacting court records regarding the marijuana claim, despite the fact that once they were part of the court file they were public by law.

The Bee went to court in January to thwart the government's latest maneuver to hide the records. As a result, 544 pages of material, plus redactions, were placed on the public docket by Sierra Pacific lawyers.

* * *

The accusations at the core of the imbroglio came from patrol officer Karen Juska, who reported that when she went to the Red Rock lookout station that day to pick up a radio in need of repair, Lief's "hand and the radio had a heavy odor of marijuana." She also reported seeing a small glass pipe in the tower's cabin.

As she and Lief stood by her truck shortly thereafter, Juska said in a written report, she spotted smoke and pointed it out to Lief. The fire was 10 miles from the tower, which had a direct line of sight to the location.

* * *

If Lief had spotted the Moonlight fire as soon as it became visible from the Red Rock lookout, the fire would have been contained and extinguished before it could reach" national forest land, SPI lawyers argue in court papers.

They further argue that the Forest Service "suppressed evidence of this misconduct in an effort to protect its position" in a tangle of litigation.

U.S. Attorney Benjamin Wagner said in a prepared statement: "We dispute the allegations regarding the USFS employee at the Red Rock lookout, but in any event, we consider those allegations to be merely an effort to distract from the central issue of the case" – that is, whether Sierra Pacific and others are responsible for starting the fire.

Sacramento Bee, 3/25/12

EDCA Court Avoids Release Of Moonlight Fire Documents

A Sacramento federal judge has avoided making public a set of documents sought by The Bee that were offered to support a critical motion in a bitter legal battle over how a 2007 wildfire started and who should pay for damages it caused.

U.S. District Judge Kimberly J. Mueller said the party offering the documents, timber giant Sierra Pacific Industries, is free to file them publicly within three days of Tuesday, the day she signed a 10-page order filed Wednesday.

Mueller noted a prior ruling that the documents are immaterial to the matter at issue in Sierra Pacific's lawsuit against the U.S. Department of Agriculture.

"In light of (the prior) ruling, SPI's attempt to file the documents at all appears to be improper," the judge stated.

She added ominously, "If SPI files the exhibits, and the court later determines that the filing was improper, the court then will issue an order directing SPI to show cause why it should not be sanctioned."

So, if the documents are filed publicly, attorneys at the Sacramento firm Downey Brand LLP who represent Sierra Pacific are looking down the barrel of possible monetary penalties.

The documents purportedly bear on Sierra Pacific's allegations that U.S. Forest Service personnel are guilty of fraud and misconduct in connection with the detection and investigation of the mammoth Moonlight fire that ravaged 65,000 acres of national forest and private property in Plumas and Lassen counties.

Sacramento Bee, 1/26/12; [see also PlumasNews, 2/1/12].

EDCA Hears Argument Over Sealing Moonlight Fire Documents

A Sacramento federal judge [Kimberly J. Mueller] heard arguments Thursday and will rule later on The Bee's objections to sealing documents that allegedly contain evidence of misconduct and fraud on the part of U.S. Forest Service employees.

Timber giant Sierra Pacific Industries submitted the documents in partial support of its motion for summary judgment in the company's lawsuit contesting the government's refusal to let Forest Service employees testify in related state court litigation.

Sacramento Bee, 1/20/12, and Sacramento Bee, 1/19/12.

Sierra Pacific Industries Can Sue Subcontractor's Insurers Over 2007 Moonlight Fire

Sierra Pacific Industries can sue its subcontractor's insurer over the Moonlight Fire, a Labor Day 2007 blaze that consumed 65,000 acres in Plumas and Lassen Counties, a federal judge ruled.

The family-owned forest-products company has accused American States Insurance Company of failing to defend and indemnify it in seven separate lawsuits.

Courthouse News, 7/27/11

Sierra Pacific Industries File APA Action Against U.S. Forest Service

According to a recent Administrative Procedures Act action, see Courthouse News, 5/10/11,

Sierra Pacific Industries and others, defendants in lawsuits seeking more than $1 billion for the 2007 Moonlight forest fire in Northern California, say the U.S. Department of Agriculture and U.S. Forest Service botched the investigation, concealed documents and created fraudulent documents "to support their fraudulent conclusions."