palco suit

7074457041

Superior

Court,

Humbold

01

:08:38

.m.

06-14.2005

5

11

hearing. The Court deemed Plaintiffs request as being for an advisory jury,

which

is

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within the power of the CourtPALCO has demurred to Plaintiffs Second Amended Complaint (SAC).(1 have adopted the collective term "PALCO", as used in previous pleadings, to refer toall defendants.) The matter was argued and submitted on February

16,2005.

PALCO's Motion

to

Strike a request for

a

jury was denied at the conclusion of the

12

complaint by a demurrer, the

court

may consider

all

previous pleadings and allegations

of

/I

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I

have read and considered the pleadings and arguments

of

both sides, andas requested, have taken judicial notice of the Statement

of

Decision in EPIC -v$- CDF ef

a.,

Humboldt County Superior Court Case No. CV990445. In deciding a challenge to a

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the parties.

I

have also taken a fresh look at the issues presented without being bound byprevious

lings

in the case. A trial judge is permitted to reconsider intermediate rulingsprior to final judgment, and an order overruling or sustaining a demurrer is not resjudicata.

5

W&in Cal. Proc. Pleadinq, Section

936,

nd citations. However, except tothe extent that this ruling may differ from the reasoning and conclusions of the HonorableChristopher

G.

Wilson, my judicial predecessor concerning this case,

I

accept and adopthis reasoning and wisdom in his other conclusions.

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232425

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of

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BACKGROUNDThe genesis of this case lies in the Headwaters Agreement. As previouslynoted by this court, PALCO transferred a significant private holding of ancient redwoodforest to the State and Federal Governments in exchange for additional property, over

300

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million dollars and other consideration, including substantial funds to local government.A key aspect of the consideration or PALCO was to obtain some degree of predictability

707

445

7041Superior

Court.

Humbald

01:08:53

p.m.

06-14-2005

3

resulting in substantial collateral costs. To this end, an important aspect of the

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in its ability to manage and harvest its resources in light of evolving environmentalconcerns for timber harvest practices and enhanced polical and public involvementbalanced

with

the pubk's interest in management of those resources in anmvironmentaliy amptable fashion. Individual Timber Harvest Plans (THPs) would then

rely

upon information developed in the

SYP

process and the THPs would fit within theframework set forth

by

the SYP. Development of the SYP is an extensive and costlymultiagency process with primary responsibility lying

with

the California Department

of

I

Forestry (CDF) the state's lead agency and the U.S. Fish and Wildlife Service concerningthe federal interest therein. The process requires the SYP be developed and submitted tothe Director of the CDF who then evaluates

its

sufficiency prior to release

for

agency andpublic review. Comment and response

are

contemplated ultimately resutting in theapproval of a final SYP by the Director

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Headwaters Agreement for all parties was the development of a Sustained Yield Pian(SYP)IHabitat conservation Plan (HCP) covering the extensive private holdings ofPALCO. Predictability o PALCO in

its

use and management of its resources would bePLAINTIFF'S CONTENTIONS

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As

well detailed in the Statement of Decision in

EelC

(supra) this was asomewhat messy process and voluminous as well, running to some

80,000

pages ofadministrative record.

(EDic,

Statement

of

Decision pg.

15).

Clearly, there was anabundance of public and agency input in the process, whatever one might think of thecondusions reached by the public bodies making the final decisions,

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Page

3

of

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As with the original Complaint (OC) and the First Amended Complaint