RANDY PENCH / Bee file, 2008

The Moonlight fire left trees bare in Plumas County. A logger says the U.S. overestimated the amount of salvageable timber there.

Sacramento federal judge to decide whether to seal Moonlight fire documents

Published: Thursday, Jan. 19, 2012 - 12:00 am | Page 1B
Last Modified: Wednesday, Jul. 18, 2012 - 6:25 am

A Sacramento federal judge is scheduled to hear arguments today on a Bee challenge to sealing documents in a legal slugfest between the government and Sierra Pacific Industries over the origin of a monster wildfire in 2007 and who should pay for the devastation it wrought.

Sierra Pacific, one of the nation's biggest timber products companies and the largest private landowner in North America, has asked U.S. District Judge Kimberly J. Mueller to seal evidence that the company claims tends to show a coverup of misconduct and fraud on the part of U.S. Forest Service employees in connection with the agency's investigation of the Moonlight fire.

Why does the company want the material sealed? It told the judge that the United States does not want the public to have access to its contents and, while Sierra Pacific may not agree that such information should be withheld, it is willing to accommodate the government.

Sierra Pacific is suing the government for refusing to allow Forest Service employees to testify in Plumas Superior Court suits seeking compensation for damages caused by the Moonlight fire. The lumber giant wants summary judgment from Mueller, and to support that quest, it submitted evidence – including the documents that would be sealed.

The contested evidence consists of excerpts of sworn testimony from depositions taken as part of a separate suit pending in federal court, also before Mueller, in which the United States claims it is entitled to more than $700 million in Moonlight fire damages from Sierra Pacific and private landowners.

The government claims the fire, which scorched 65,000 acres in Plumas and Lassen counties, was sparked when a bulldozer belonging to a Sierra Pacific contractor struck a rock. That theory is hotly disputed by Sierra Pacific and the contractor.

The blaze burned furiously for two weeks, filling the Sacramento Valley with haze and sending a plume of smoke as far east as Salt Lake City. It reduced the terrain to a moonscape and destroyed two structures and five outbuildings.

Six lawsuits in Plumas County – one brought by the state and the others by private landowners – plus the United States' suit in federal court, seek more than $1 billion in damages and interest from Sierra Pacific and others.

In opposing the sealing of evidence, Bee attorney Karl Olson cites federal appellate law, which he says makes clear there is a "strong presumption of access to judicial records," especially those related to requests for final adjudication such as motions for summary judgment.

"A major fire consuming tens of thousands of acres is obviously a 'significant public event' and the public has every right to know what the parties' allegations, defenses and evidence are in this case," Olson wrote in a brief filed last week.

"Neither Sierra Pacific nor the U.S. Department of Agriculture (the Forest Service's parent agency) has advanced any reason whatsoever why the papers in this case should be sealed – there are no trade secrets or national security interests at stake – and there are none.

"At most," Olson wrote, "it may be that one of the parties wants some of the papers sealed because that might lead to 'a litigant's embarrassment, incrimination or exposure to further litigation.' " But, he declared, that's not enough, and cited a 2006 opinion of the 9th U.S. Circuit Court of Appeals, the highest court in the West with jurisdiction over California and eight other states.

In order to overcome the public's First Amendment right of access, it has to be demonstrated that sealing "serves a compelling interest," that the interest would probably be harmed in the absence of sealing, and that there are no alternatives, according to the Olson brief.

It says there is no countervailing interest in this instance, "much less the required compelling interest."

"The public has every right to know whether the government is at fault or, on the other hand, whether a large corporation is trying to shift blame for causing a major fire," Olson contends. The answer, he argues, "has a serious impact on millions of Californians."

Sierra Pacific does not oppose The Bee's stance, pointing out in its response that it did not want the documents sealed in the first place. The company suggests that Mueller privately review the documents and decide whether the public has a constitutional and common law right to the information.

Assistant U.S. Attorney Todd Pickles filed a convoluted response implying the United States is in favor of the people's right to know. But, in an effort to be helpful, he urges a plan that would ensure the people would never know what the documents say.

Pickles argues the documents are irrelevant to the issue raised in Sierra Pacific's summary judgment motion, "so they should not be filed under seal or on the public record. Accordingly – the constitutional issues raised by the Sacramento Bee need not be considered at this time."

As to his argument that Forest Service employees have a legal right to privacy when it comes to what Pickles alleges are personnel matters, Olson's brief counters, "No party or third party should have any expectation of privacy in this dispute."

The brief quotes the California Supreme Court as observing in a 1999 decision that parties in civil cases are "entitled to a fair trial, not a private one."

© Copyright The Sacramento Bee. All rights reserved.

Read more articles by Denny Walsh



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