By Frank Hartzell
FORT BRAGG, 1/28/20 — On Thursday, Jan. 21 in Mendocino Superior Court, Fort Bragg division, lawyers for the California Attorney General’s office argued in favor of the possible death penalty — for a road.
It’s a dead end road, created by the Caspar Lumber Company, probably during World War II, for unknown reasons. It’s just a ⅓ of a mile long and rolls gently across flat ground through pygmy forest, which nobody ever wanted for logging, to a homesite now owned by Maribeth Mercado White.
For the past 75 years, residents of that property have used the road to access their home, although never having an established easement to do so. For most of that time, the road and the land it went through have been part of Jackson Demonstration State Forest.
For the past 10 years the road has been the subject of three different lawsuits and several other legal filings, seeking to either use it, or close it, then dig it up and return the land back to nature. Thursday’s court battle was over motions to dismiss two lawsuits filed against the state by the property owner.
Jackson Demonstration State Forest is full of towering redwood trees, pristine creeks, bears, wild mushrooms. But amidst that publicly owned natural splendor are a handful of private property inholdings surrounded by state-owned forest, where people drive through the state land to get home.
The White family first filed suit in 2010 against Cal Fire to gain a permanent easement to their 40-acre parcel on the road the family has been using and maintaining for decades. The road starts at a locked gate at the end of Mitchell Creek Drive, located just south of Fort Bragg off Simpson Lane . It is actually two roads end-to-end in legal records, roads 515 and 516, both of which could be doomed if the state wins the current legal effort.
In Fort Bragg’s Ten-mile courthouse on Jan. 21, attorney Rod Jones, of Mendocino town, went up against Marc Melnick, attorney with the California Attorney General’s office, who appeared via Zoom. In California when a state agency is sued it is represented in court by the California AG’s office. In an interview, Jones said he and Melnick have faced each other for the entire decade-long fight over the fate of the road.
This is one of the longest lasting disputes, yet seemingly most simple, in Mendocino’s court system: A property owner wants permanent legal access to a road they have had access to or the keys to for 48 years. “It’s exceedingly simple. It’s a no brainer,” said Jones.
Yet, this simple claim is complicated by the fact that the owners did not obtain the easements that most others in the same position did back in the 1980s. The world has changed since, and Cal Fire is now resolute that no permanent legal easement was ever to be granted nor will be granted.
Maribeth Mercado White lost her initial lawsuit, filed in 2010, to establish permanent legal access. Both trial Judge Clayton Brennan and the state appellate court ruled in 2015 that they could not force the state to grant her a legal easement when she already had permission to use the road without a legal easement, Jones said.
Though Calfire has a policy designed to grant easements, the court found that application of the policy is not mandatory. The appeals court also noted that there was a possibility of an alternative route to the property through the neighbors, not public lands, although nothing now exists.
In 2017 Jones filed a new suit to prevent road closure and fight for the easement. In 2019 Cal Fire filed plans to use a California Environmental Quality Act exemption filing to close the road among a half dozen other old logging roads. The road closure information (for road 515-516) is here: https://ceqanet.opr.ca.gov/2019028294/2
Removing old logging roads is a key effort in forest management especially where streams and erosion are present, but that was not the reason given for the closure of roads 515-516. Instead the reason specified by Cal Fire is, simply, “not needed for forest management.”
Closing the road would mean property occupants would have to walk or “parachute in,” Jones said. Jones maintains he was not told about the road closures and thus did not respond to the legal notice within the 30 day comment period afforded by CEQA. He said the road closure notice happened during legal negotiations to gain the easements, which Jones characterized as being double crossed by the AG’s office.
Melnick did not respond to this charge in court. Cal Fire denies there was ever a plan to grant a permanent easement, only temporary road use agreements.
“If there was a simple solution we probably would have reached it many years ago,” said Kevin Conway, state forests program manager for Cal Fire, in an interview. Conway said the state has had a consistent policy of not giving an easement on the road throughout the process, providing temporary use agreements instead. He said the road serves no purpose whatsoever for Cal Fire and rolls through sensitive Jackson Forest pygmy forest habitat, which could be reclaimed with the closure of the road. He said old historic photos show there was once another access road through a neighbors property and that another access could be created.
“It’s our position they are not fully landlocked,” said Conway, meaning that the parcel is not surrounded entirely by protected public land, and also meaning a new road could be made through the private property of neighbors.
Jones filed another new lawsuit in 2020 on behalf of White. The new cases are fighting to block road closure and destruction and once again seek the official easement that the White family has sought since the 1980s. The answer from Cal Fire continues to be “no” to an easement. Conway pointed out that there has never been a legal easement on the road, from the time of original purchase.
Maribeth White still owns the property but no longer lives there. Her husband passed away during the years of dispute. She is now married to attorney Jones. Thursday’s hearings first sought to add John P. O’Brien into the 2017 case. He lives on the property with his parents and has the property in escrow as the buyer. Judge Brennan denied adding O’Brien to the 2017 case, even though he is already a plaintiff in the 2020 matter.
Why two lawsuits at once? Jones said the second case was filed over new legal precedents that may now make it easier to force Cal Fire to give the easement.
O’Brien is a PhD climate scientist who grew up in Northern California and was thrilled when the property came up on his Zillow search. He works at the National Center for Atmospheric Research in Colorado. He has been working from home during COVID and was hoping to find a place in Northern California. When he heard about the dispute he hoped he could step in and work things out with CalFire in a way that would benefit the environment.
“I offered to work out an agreement and we could work together to make the forest a better place.” He said he offered to create an electronic gate to be kept closed, the locks of which would be monitored as part of the easement. He also said that the property owners would maintain the road and would not subdivide the property.
“They unequivocally denied any discussion. That’s not the outcome I was expecting at all…I’m a scientist and a very pragmatic person. I have been appalled by all of this. They are not acting in the forest’s best interest, not in the taxpayers best interest. This is doing something not in line with their management plan. It is also not in line with the forest plan,” said O’Brien.
Conway said O’Brien did reach out with his plan to Cal Fire but the policy of the state remains that no easement should be given and only temporary agreements for use of the road would be provided.
Conway said the closure of the road is in line with Cal Fire’s management plans, as it serves no purpose for the forest or Cal Fire and leads from one private property to another. It requires resources like the need to patrol the road area from Cal Fire without providing any benefit to the state agency, Conway said. He said there was another parcel of private property that the road goes through.
“We don’t offer the full solution to them,” Conway said.
The White property itself is surrounded by public lands on three sides with two other private property owners on the west side. O’Brien said Cal Fire’s push for a replacement access road through one of two neighbors’ properties would be destructive to the environment and also create a road through the front yard of someone who moved into the forest to be away from all that.
Conway said Cal Fire has not set a date for road closure. He said if the current cases are dismissed the road closure could commence once White has acted to create alternative access through one of the neighboring properties.
O’Brien says Cal Fire has a clear policy on how to deal with easement and road issues just like this, but is not using that policy in this case. While other roads being used for access may have other benefits to forest managers, this one does not, according to Cal Fire. Conway said with modern road building techniques, there is no reason that building or rebuilding an alternative road can’t be done in an environmentally sensitive way.
The history of the parcel reflects the changing dynamics of the Mendocino Coast from free wheeling settlers and logging companies to increased public ownership and regulation.
The property actually was purchased by a private buyer before Jackson State Forest itself. The state of California had acquired the land from the federal government as part of a school grant from the federal government in the 19th century, the court file states. The state never used it for a school and instead decided to sell it off, being then isolated among timber company lands.
On December 16, 1946 the State of California sold the parcel to a man named Arthur C. Ward, using the road through Caspar Timber Company lands for a short time, according to the court file. In 1947, the state, which had sold land only a few years before began creation of the Jackson Demonstration State Forest by buying large swaths of private property, leaving several such “forest locked” parcels inside the area taken up by the state forest. They solved this problem by granting easement to most of the parcels, the suit claims.
“Many of these parcels do not provide the sole or even most convenient access route to the private property but JDSF nonetheless spontaneously and freely awarded such easements in the coastal area during the 1980s,” a filing by Jones claims.
William White, and his brother Robert White, originally obtained the parcel in 1973 for approximately $60,000. Although the Whites began the process of obtaining an easement in the 1980s, that was never completed.
Jones says simple neglect by all those involved appears to be the explanation for why the easement never went through. In the 1990s, Cal Fire, then commonly referred to as the California Department of Forestry and Fire Protection (CDF), complained that the road was being used by trespassers who dumped garbage or camped illegally, according to an appeals court filing.
In 2005, the state wrote to the Whites saying the problems continued on the road and that a gate would be installed and the Whites given the keys. Since then, there has been no trash, court filings and a walk down the road both showed. At one point in 2006, the property was for sale for $1.5 million, according to appeals court documents. The property had another buyer in 2018 but they backed out due to their own financial issues, Jones said in court.
In the first decade of the 21st century, the White family made several efforts to obtain a legal easement, which were denied, resulting in the 2010 lawsuit and subsequently the two current lawsuits.
This reporter took a tour of the road on Jan. 23. The road is flat and the area around it kept pristine, although there are signs of extensive efforts made to block dumping along the road that went on in the 1990s — prior to the installation of the gate. Shiny deep red 12 foot tall manzanita are found along the road among the usual ragged majesty of pygmy forest lands.
Two decades ago Cal Fire erected oversized guardrail-like barriers to keep people from dumping on side trails, which still are found along the road. There is no trash whatsoever anywhere along the road now. The road’s condition is better than many of Fort Bragg’s heavily used backroads, including all of the gravel portions of Mitchell Creek Road that it connects to.
In the courthouse on Jan. 21, the AG’s attorney, Melnick, argued in court that the case should be dismissed because it had already been litigated — citing the legal doctrine of res judicata. He also argued against the establishment of one kind of easement because of the legal doctrine of “innocence,” meaning White knew that there was no legal easement and was thus not entitled to be awarded one. Jones argued that the case was new because of the threat to destroy the road, not just deny a legal easement. The previous case had ended with the understanding that an easement would not be necessary because there was the promise of road access, O’Brien said.
“Destroying the road would landlock two homes and ~4000 feet of PGE power lines, a transformer, and multiple utility poles. Of course the property could not be maintained without any access and thus would present a huge fire hazard to the neighborhood of Mitchell Creek and the adjacent state forest,” O’Brien wrote in an email.
Conway said there was no plan to close the road immediately and that even if the suits are dismissed, there would be time provided for the alternative access to be arranged and created.
Judge Brennan said because of the huge size of the case file, he would not be issuing a ruling quickly on a summary judgment motion that was argued in court Thursday. The motion could result in dismissal or judgment for the 2017 lawsuit or even a new trial date, which could keep the case on the docket even longer.
Jones also filed a counter motion for summary judgment in favor of White, seeking the court to award the easement sought. The state is also seeking to end the 2020 lawsuit through a “demurrer” also argued on Jan. 21. With the outcome and the life of the 76-year-old road uncertain still, the judge advised the parties to find a way to end it.
“I think this is a case where the parties would be well advised to explore a settlement based on how long this has gone on and how much money must have been expended to resolve these claims,” Brennan said.
Three attorneys appeared by Zoom at the front of the courtroom, two from the AG’s office and also an attorney representing O’Brien, with Jones, O’Brien and White appearing in person. Access to the courtroom by this reporter, as an observer, had to be obtained by using a special form, as part of COVID restrictions. The people waiting for hearings, who once would have been in the courtroom, were instead packed into the lobby of the courthouse, with parties called one by one. Fort Bragg’s courthouse handles different calendars on different days, ranging from family law matters to jury trials.
The 2015 appeals court decision on the first lawsuit over the road is found here:
Attempts to reach the A.G.’s attorney, Melnick, by phone and email for comment were returned by the A.G.’s press office. The press office wrote back to say they do not comment on cases where work is being done for a client (here Cal Fire) and referred all comments to that agency. Conway replied.
The JDSF is a 48,652-acre forest located in Mendocino County between Fort Bragg and Willits. It is the largest of California’s demonstration state forests. These forests are mandated to conduct research, demonstrations, and education on sustainable forestry practices using active forest management techniques, and periodic timber harvests.
The court file was off limits for review by this reporter because the massive file is currently being used by Judge Brennan. This situation is common but may soon change. Mendocino County is in process of a radical transformation of its system of public access to court files, according to Kim Turner, chief executive officer of Mendocino Courts. All files are eventually to be available online with Feb. 8 the “go live” date, Turner said. When the files are all online, the hope is it will save greatly on court costs and time, as well as enlightening those who want the full story for any case, rather than rely on press releases and news stories.
This article was originally published by The Mendocino Voice.