By Miriam Raftery
Photos by Ron Logan, Miriam Raftery, and Merton Gaudette
March 10, 2011 (San Diego’s East County) – Candy Jenkins was looking forward to seeing environmental evidence presented to a federal judge in San Diego on Monday. “I live on El Capitan Mountain,” said the Lakeside resident, who alleges that SDG&E is building Sunrise Powerlink towers only 2,000 feet from an eagles’ nest. She has photos, and says the eagles are tagged and the locations documented by the County. “Towers weren’t supposed to be within 4,000 feet,” she said. “We’re bringing this out today in court.”
Told by this reporter that the hearing had been cancelled because Judge Michael Anello announced that he will be ruling on the written record only, Jenkins expressed shock. “It’s heartbreaking,” she said. “Whatever happened to democracy in America?”
Jenkins was among more than 100 East County residents who braved the rain to protest in front of SDG&E’s headquarters, then march to the federal courthouse where the trial would have been held.
Native Americans join battle to stop Powerlink
David Elliott, a Manzanita tribal member, risked his job to speak about what he’s witnessed as a Native American monitor on the Powerlink project.
“I may not be employed tomorrow,” he said. “This project will impact sites that are very significant to our ceremonies. They are putting towers on them and it appears that we will not be able to go to those sites in the future,” he said, then added defiantly, “We’re going to go to them anyway.” He said off-road vehicle enthusiasts will no longer be able to use McCain Valley if Powerlink and wind projects related to Powerlink go through.
He also spoke against the Tule Wind farm and other wind projects proposed for his area. “Our community will be entirely encircled by wind turbines.” He said people in his community are suffering health effects from the wind turbines. “They [energy companies] don’t want to acknowledge health effects. They don’t even consider safe distances…but they should, for people and for animals.”
Elliott said the Bureau of Land Management, which owns land where both Powerlink and the wind projects are slated, has a bighorn sheep population that he’s seen, along with other animals such as mountain lions and bobcats. “The BLM claims there is no such thing, that the bighorn sheep don’t exist,” he stated. View video excerpts of Elliott's speech.
Alfredo Figueroa, a Chemehuevi Indian, drove 250 miles from Blythe, California for the protest. He represents Lacuna de Aztland Sacred Sites Protection Council. “We have six lawsuits against solar projects,” he said. “We are in charge of sacred sites, and yet they don’t respect our MOU (memorandum of understanding) with the BLM.” Of Powerlink, he said, “They are ram-rodding it through before Congress runs out of money and stops it, and they should.”
Plaintiffs representatives discuss lawsuit
"We have a very good attorney and a very good case," said Donna Tisdale, spokesperson for plaintiffs that include Protect Our Communities, Backcountry Against Dumps, and the East County Community Action Coalition (ECCCAC).
“We have waited nearly two years for our day in court, and have overcome every legal hurdle that SDG&E has put in our path,” Laura Cyphert, co-founder of the ECCAC, told East County Magazine. “We anxiously await a decision and strongly believe that if it is truly based on the record, then we will surely prevail.”
Speaking to the crowd, Cyphert said coalition leaders have been told of “corrupt back room deals” and “corrupt politicians appointing commissioners” who sought to push through the Powerlink project, but failed to get the case dismissed. “Then we were told we could not raise enough money” for a lawsuit, she noted, expressing hope that justice will prevail because “to be bringing this into the most fire-prone part of the country is a crime and an injustice that must be stopped.”
Supervisor Dianne Jacob voices faith in judicial system
Supervisor Dianne Jacob agreed, and thanked her “backcountry warriors” for helping to stand up against industrialization of "our beautiful backcountry." She noted that SDG&E has already been fined for multiple violations and asked, “Are they going to prevail for the benefit of the almighty dollar, or are we the people going to prevail on behalf of the ratepayers in the San Diego region?”
Jacob said support for Powerlink has been “all about the money,” adding, “Follow the money.”
Voices in the crowd shouted, “Criminals! It’s our money!”
“It is our money,” Jacob agreed, then said she believes this and other lawsuits against Powerlink should win in courts of law. “I have faith that judges will look at the evidence in record and if they do, then our side, the right side, will prevail.” View video excerpt of her speech.
Protest becomes a circus--literally
Protesters included circus performers--jugglers and a clown on stilts, who drew attention to the crowd, as some motorists honked and waved in approval. Musicians led a chorus of "This Land is Our Land" and performed an anti-Powerlink song.
But mostly, those present were ordinary East County citizens expressing serious fears and concerns.
East County residents speak out
“They marked all the beautiful 100 year old oak trees on my street. They are going to cut them down,” said a Campo woman. “People out here lost so many due to bark beetles, and now the ones that are still alive, they’re killing them.”
Gisela Noland said of the Powerlink, “It’s going to cause a lot of fires.” To which Milt Cyphert of Lakeside responded, “I’m not worried about ones it will cause. I’m worried about the ones they can’t put out.”
Rob Emerson of Blossom Valley agreed. “We’ve been through a couple of fires out there,” he said. “At one time, there were 13 firefighting aircraft at the base of the mountain…with Powerlink, I don’t think that could happen.” Planes cannot fly close to the high voltage lines, nor drop water unless the lines are first depowered. Fire officials have testified that firefighting on the ground would also be hindered, though SDG&E contends that its lines will not diminish firefighting and that it will convert its Sunbird, a massive helicopter, for firefighting purposes in cases of wildfires.
Marion Bowles of Potrero said SDG&E is starting construction at the “chicken ranch” site in Round Potrero Valley—the same valley saved from a proposed Blackwater private military training camp following a massive public outcry and recall of planners who voted for that project. Bowles and a second Potrero resident present expressed anger at what they view as despoilment of a town treasure. Others expressed similar anger that Powerlink construction has commenced in environmentally sensitive areas such as Lakeside’s El Monte Valley as well as through the heart of Alpine’s business district.
East County Magazine attempted to obtain comment on the protest rally from SDG&E officials. But our writer and a videographer were denied access to the building. Pedro Rosa, a security guard hired by SDG&E, told ECM representatives clearly identified as media that “We have no opinion and this is private property. Now will you get off before we call those police across the street?” (View SDG&E’s arguments in favor of the $1.8 billion line at www.sunrisepowerlink.com)
An appeal to a new Governor
Ray Lutz, founder of Citizens Oversight Projects, a watchdog organization, reacted with outrage to SDG&E’s refusal to allow protesters closer to the Sempra Energy’s highrise headquarters. “We’re ratepayers. We paid for these steps to this entire building, yet they say we can’t stand on those steps. That’s the attitude we need to change.”
Lutz accused SDG&E of “illegal lobbying” and revealed he is working to bring a delegation to visit new Governor Jerry Brown to discuss the possibility of reversing Powerlink approval made by the California Public Utilities Commission during Governor Arnold Schwarzenegger’s administration.
Judging the Judge
Judge Michael Anello is assigned to decide the case. He is a former Marine and Deputy City Attorney, served in private practice in San Diego for 25 years before become a San Diego Superior Court Judge in 1998. He was appointed by President George W. Bush to the U.S. District Court for the Southern District of California in 2008 and was unanimously recommended by a bipartisan Judicial Advisory Committee.
Senator Dianne Feinstein, in a letter supporting Anello’s nomination to the federal bench, stated that he was “well known and well respected for his intelligence and his judicial temperament.”
Senator Feinstein has been a staunch support of Sunrise Powerlink. The San Diego Union-Tribune has reported that she told Forest Service Chief Tom Tidwell that the line posed no “real environmental problems that I know of,” and that it was needed to supply jobs and renewable power. Shockingly to the many constituents who had voiced opposition to the project, including letters to Feinstein’s office, Feinstein further said that she knew of “no opposition” to the plan, but after a staffer slipped her a note, called the opposition (a coalition of over 79,000 people) “NIMBY groups fully considered and dismissed by regulatory agencies.”
Some Powerlink protesters at Monday’s rally voiced fears that cancellation of the trial could mean a negative outcome is forthcoming.
They point to Judge Anello’s track record, citing some decisions favoring large corporations, most notably in the case of Gober v. Ralphs Grocery Company, when Anello was removed from the case by an Appellate Court after documents revealed a judge previously removed from the case stated that Judge Anello conferred with her on the case, which would be a violation of judicial ethics. Jurors and a prominent trial lawyer contended that Anello kept out evidence that would have led to an even larger verdict than the $30 million ultimately awarded for abuse and harassment of store employees.
Following the verdict in the Gober case, Anello filed a complaint against the State Bar against plaintiff’s attorney Phillip Kay alleging misconduct, though he never filed a misconduct complaint during the trial. Kay contends that evidence against him was falsified by Judge Anello. “I have no qualms saying in public that the man is a bona fide liar,” Kay told ECM.
Kay was suspended for three years by the Bar, but claims it was because he refused to divulge information protected by attorney-client privilege. He is now suing the California Bar Association. A prominent civil rights attorney, he won landmark cases including two featured on PBS and Court TV. The National Law Journal named Kay to the list of “Top Ten Litigators” for 2002, and he was a finalist for the Trial Lawyer of the Year Award from Consumers Attorneys of California. The Gober v. Ralphs Grocery case resulted in the highest non-class action sexual harassment verdict I U.S. history.
Kay also obtained a large verdict in another prominent San Diego case, Marcisz vs Ultra Star Cinemas, in which employees alleged they were terrorized at work including being held at knifepoint. Kay alleges that Anello conferred with a trial judge in that case as well in an effort to discredit him.
“He doesn’t care about the law and he doesn’t care about who gets hurt,” Kay said of Anello.” He has his own agenda.” He further contends that by omitting information from his U.S. Senate confirmation questionnaire about his removal from a case for what amounts to” judicial misconduct,” he believes Anello committed an impeachable offense.
Anello’s rulings have not always favored corporations, however. He has ruled in favor of environmental protection in at least one prominent case, calling for an injunction against the Gregory Canyon landfill. Then a San Diego County Superior Court Judge, he ruled that the environmental impact report was inadequate and violated the California Environmental Quality Act. Judge Anello ruled in favor of the United Nurses of Children’s Hospital, a labor union, in a court battle over a mandatory flu vaccination policy. He also authorized a class action against Welk Resorts, which was accused of hiding water leaks that led to growth of mold and fungus.
Another controversial case heard by Anello entailed a case filed by Linda Poniketera, an El Cajon voter who sued San Diego County to ask that the Registrar assure that seals are properly affixed to ballot boxes before they leave polling places to prevent tampering and alleged that the County was not following its own procedures. Judge Anello ruled against her and an Appellate Court denied her appeal.
Powerlink opponents stake future on court's decision, express faith in democracy
Speaking outside the federal courthouse Monday where the trial would have been held, Diane Conklin of Ramona told the crowd that their efforts are part of a “change that is sweeping through our country” among people who “want a say in what is happening.” She said the people gathered at the courthouse from East County were there because “you believe in the federal court system. You believe in democracy, and you believe in the United States of America.”
Whether Anello’s ruling will vindicate these East County residents’ faith in democracy, or come down on the side of powerful voices favoring the Powerlink, remains to be seen.
Correction/update March 30, 2011 – An earlier version of this article contained once sentence which refered to a “trial” cancelled. In fact the case was a hearing on plaintiffs’ motion for summary judgment.
ECM has received a letter from the San Diego County Bar Association which noted:
"The article’s statement the “Trial had been cancelled” is incorrect because a trial date for this case had not been set. Moreover the inference Judge Anello’s future ruling to be made “on the written record only” somehow deprives the parties of their legal rights is also in error.
This case involves judicial review of a federal action. The public record clearly shows the parties mutually agreed to have the issues decided by filing written motions. Such motions are automatically set for determination by the assigned judge on a specific date (in this case, March 7th, 2011). Pursuant to Civil Rule 7.1.d.1, and common practice, these type of motions are generally decided without oral argument. But even if an oral argument had occurred on March 7th, that hearing would simply have been an opportunity for the lawyers to orally present the arguments set forth in their written motions."
We respectfully differ with key points raised by the Bar.
Plaintiff Donna Tisdale states that “our attorney advised us via e-mail that the hearing had been cancelled and the judge would issue his future ruling based on the written briefs filed by our attorney, SDG&E, and the Dept. of Justice.” Prior to cancellation, plaintiffs had widely publicized the hearing date and arranged to have a large crowd at the courthouse for the hearing. Laura Cyphert with the East County Community Action Coalition, another plaintiff group, also reconfirmed that a hearing was set and then cancelled. So clearly there was an expectation that a hearing would take place.
Our story never stated nor implied that plaintiffs rights were denied. However, plaintiff Tisdale, when asked for comment on the Bar Association letter, responded via e-mail , “We were deeply disappointed and felt we had been denied our rights to be present to hear and see the Judge’s questions, body language, and actions and how our attorney defended our rights and the law against the arguments posed by attorneys for SDG&E and the BLM.”
Cancelling the hearing, moreover, raises a question of whether the plaintiffs’ and the public’s interest in observing the judicial process in this extremely high-profile case was respected. The judge had a right to decide on the written record, but he also had the option to assure transparency and allow the public the opportunity to observe the proceedings in a public courtroom. Thousands of East County residents have a strong and personal stake in whether approval of Powerlink on public lands stands or is struck down, yet the public has been denied the opportunity to witness the decision making process in this landmark case.
We stand by our story, with the exception of use of the term “trial” instead of “hearing.”