“Protesters Keeping CalTrans At Bay” — Anderson Valley Advertiser

This story first appeared in the Anderson Valley Advertiser, March 6, 2013.

Protesters Keeping CalTrans at Bay
by Will Parrish

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.

PicNIn 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 from 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 – 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 30 days in advance.

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, at best, extremely misleading, 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. The company’s web site describes it 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 on behalf of 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, there are 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. 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.

PicOTo place CalTrans’ intransigence fully in context, 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 Evironmental Planner Jerome Washington quickly judged the first nest he surveyed to be fabricated. Since he hadn’t seen it when he walked the area, he claimed one of the de facto citizen monitors who had been roamig the area, who were in a sense 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 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 starting to nest in what became the ESA fence’s bulldozed swath.

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 at least $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 letter from MCOG include a request to post these letters on a website.

As Rosamond Crowder of the Willits Environmental Center put it, “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. It’s The Warbler and her supporters – who have the momentum from having delayed this project by perhaps two months already – who are in fact guarding the taxpayers’ interests, as well as those of the birds, trees, wetlands, and local residents who would have to live with this hell.

6 thoughts on ““Protesters Keeping CalTrans At Bay” — Anderson Valley Advertiser

  1. John Stone

    It seems you research is second to none. Where can we find anything related to the 1927 Migratory Bird Treaty Act? Why is the project now $400 million? Where is that number coming from? It was $200 million last week.

  2. Emily

    Well done Warbler group. I was reading a bit on the Migratory Bird Treaty Act online, it seems Cal Trans broke the federal law. According to the Migratory Bird Treaty Act ” Persons found in violation of the MBTA can be arrested without a warrant61 and charged with a misdemeanor carrying a $1500 maximum fine and/or a six-month maximum jail term.62 If the violation was committed knowingly, a felony conviction can result, carrying a $2000 maximum fine and/or a two-year maximum jail term.63″

  3. Jed Diamond

    Thanks for the excellent, in depth article. It illustrates to me that big bureaucratic entities like CalTrans give lip service to the needs of the people, the land, the animals, and the plants. But they care very little for us. In private their views of us are that we are just a nuisance at best and un-American obstructionists at worst. They are so caught up in delusion of the future based on a 1950s vision of moving large quantities of goods as quickly as possible from one end of the country to the other, they no longer hear the cry of those who believe that our Little Lake Valley with its human, animal, and plant life is more important than an efficient commerce system that continues to make the 1% and the 1% of the 1% richer and richer while the 99%, the 99.9%, and the 99.999% of us struggle to keep our heads above water.

    And speaking of water, could there be anything more out of touch with reality than the CalTrans plans to suck all the water out of the Valley so it will be more hospitable to the needs of concrete pilings than to the needs of life?

    So the real question we have to ask, Are we willing to stand up for life or sit on the side lines while the CalTrans bureaucracy stands up for concrete pilings, big trucks, and large profits for the few?

  4. John Stone

    It was obvious from the video that the first bird nest was fake..it had no structure. The second was from a prior year. Nesting birds would leave feathers..or fresh twigs or even eggs. Because you saw two birds fly off doesn’t mean they were nesting. It would have been believable if you saw two birds actually fly out of that nest. Otherwise it’s just silly speculation.

  5. Scott Bulkley

    I have studied birds and their nests for over twenty years. Nests can be made up of anything from loose, dry grasses, sticks, mud or combinations of those materials. Rarely are green materials used. Feathers wouldn’t be falling off til the birds were using the nest and even then, they would probably be removed by the parents. Most small birds would only use feathers to build a nest if they were lucky enough to find some laying around. There would only be eggs if the birds were allowed to complete their nestbuilding, which can take several days to a week. And with this year’s early warm weather, many species will have time for two nests. It is not ” silly speculation ” to build nests this time of year. It’s what birds do.


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