California Lawyer


June 2014

Broader Views
As a former local bar president, I applaud California Lawyer for recognizing lawyers who go the extra mile in bringing honor and respect to the profession ["2014 California Lawyer Attorneys of the Year," March].

I have been a certified criminal law specialist for 28 years, served on the board of legal specialization, and taught law for more than 22 years as an adjunct professor, so it was especially appalling to me to see a CLAY award go to Hartley M. K. West for her work on the Stephen Tanabe [corruption] case.

I represented Tanabe on the state prosecution, and Tim Pori represented him on the federal case. Even in the most Pollyannaish view, the U.S. Attorney's conduct during trial was emblematic of federal prosecutions in allowing the "big fish" to testify against the "little fish." The two masterminds in the case got off relatively easily, and that represents a reality most state prosecutors and defense attorneys acknowledge: When a case is a "slam dunk," the U.S. Attorney is anxious to take it from state prosecutors. If the U.S. Attorney had not taken this prosecution away from Contra Costa deputy district attorney Hal Jewett, that pair would have received more than twice the penalties the U.S. Attorney's office negotiated.

Instead, Tanabe, who had stopped known drunk drivers, was held up as the villain, with [his commander] the key witness against him. I had always understood that the CLAY Awards were for exceptional lawyering, but I am now disabused of that notion. - Daniel J. Russo, Vallejo

There is a problem with my subscription. I think I received the Northern California edition of California Lawyer for March.

Among the 57 recipients of 2014 CLAY Awards, 39 are from the Bay Area or Sacramento, 3 work out of state, and 15 are from the legal backwater of greater Los Angeles.

Apparently, the rest of the state is bereft of any extraordinary attorneys. - Martin Zaehringer, Ventura (about an hour north of Los Angeles, pretty close to Santa Barbara, which is about four hours south of San Francisco)

More than Oysters
Regarding "It's Not Just About the Oysters" [March], I have lived in West Marin for 71 years. My father was the first director of the Marin Conservation League, when it was fighting against logging on Bolinas Ridge and the Point Reyes National Seashore was established and agricultural zoning was strengthened to create open space. After retiring, he worked for the Trust for Public Land.

I hope the people of West Marin who live in protected historic towns like Point Reyes and Tomales understand that all this open space and the historic villages are still intact because of grassroots politics and hard work by volunteers, and that peace and respecting nature are more important than power and money. - Louise Gregg, Tomales

Let small, family-run food businesses survive and thrive! Let the oyster company and community continue. I am a retired science teacher and grandmother, and I've visited Tomales Bay and enjoyed it for 60 years. I hope to continue buying from local, sustainable food businesses - and not to end up buying our oysters from China. - Jessica Denning, Sacramento

Sadly, writer Kelly O'Mara fell into the tired and untrue storytelling frame of David vs. Goliath, which the Santa Rosa Press Democrat rightly called "baloney." To quote the paper's editorial supporting the National Park Service: "This is not about the federal government being heavy-handed. It's about federal authorities keeping a 40-year-old promise to create the first marine wilderness on the West Coast. It's about time - time finally running out for a company that knew it was on the clock but now wants to pretend otherwise. It's time to move on."

O'Mara portrays the involvement of the Koch Brothers in this fight as a "public relations" problem, but this occurred after a right-wing legal organization provided millions of dollars worth of free legal work for farm operator Kevin Lunny and his family.

And those signs about saving the oyster farm? They're Astroturf, not homemade but manufactured en masse by the special interests who want to rob Californians of the wilderness that this special part of our state was meant to be. - Steven Maviglio, Sacramento

Online response to Maviglio's comments at www.callawyer.com: The signs are individually painted by supporters, including myself. I came up with the idea for creating signs after I realized the tremendous support for the oyster farm in Marin County, Sonoma County, and beyond. A local artist came up with the design of the sun and waves, which has become the symbol for supporting the farm.

As a longtime fierce environmentalist and Democrat, I am saddened by the lies and false framing by fellow environmentalists. - Yannick Phillips, Sonoma Valley

Another response to Maviglio: I'm part of the community group of women who started making the signs. We have had sign-making parties that included dozens of community members and oyster farm supporters. We decided to do this when we got tired of outsiders coming in and calling those of us who supported the oyster farm Koch Brothers conspirators. Thanks to Kelly for an excellent article! - Robin Carpenter,Lagunitas

The author mentions "how important a precedent Lunny's case could set." But she doesn't explain beyond mentioning "larger national debates over conservation, management of all types of federal land, and the limits of federal authority." Thus, the reader is left with the impression that Lunny worked with the Koch brothersbacked Cause of Action simply for its "free" legal services, when in fact the group was using the oyster operation as a wedge issue to help open public land to leases for drilling and mining. These interests were on board the oyster boat until their participation backfired - and proved the point of the wilderness defenders.

Further, if "it's not just about the oysters," then it's also not about ranching in Point Reyes National Seashore. And it's not about science; science-based impacts, whether positive or negative, are totally irrelevant when Congress put aside the land as wilderness.

What this debate is really about (drilling and mining on public land) gets almost no mention. In the lower 48 states, 98 percent of the land is either built on or it's working landscape. Those trying to push commercial activity into the remaining 2 percent want to open it for exploitation. - Gordon Bennett, Inverness

So many claims of the big bad government "taking away" a wonderful family-owned business, of "heavy handed" government victimizing struggling families. What nonsense! The facts are that this is National Park Service land, and the park service's stated mission is to promote and regulate the use of national parks and conserve the scenery and natural and historic objects and wildlife therein.

In addition, Congress intended Drake's Estero to be a marine wilderness back in the early 1970s and was more than generous in giving the former Johnson Oyster Company a 40-year lease. These few tiny pieces of our nation are the last bastions of natural ecosystems. Do you think we should bring back dairy cows and sheep farms to Yosemite Valley if they're "organic" and provide work for local people? We've waited more than 40 years for this area to become decommercialized and restored as wilderness.

The mental gymnastics over [U.S. Interior Secretary Ken] Salazar's decision are more than disingenuous. He had the discretion to extend the lease but decided not to. End of story. Simple as that. - Les Barclay, Fairfield

A Question of Consistency
[In "Enforcement v. Law," ESQ., March] Professor Jesse Choper says, "Citizens - including sheriffs - don't get to decide what is constitutional. Whatever their obligations under state law, they are required to uphold the [U.S.] Constitution as determined by authoritative decisions of the Supreme Court. You simply can't impose your own views on what is constitutional."

I wonder if he expressed similar criticism when [former state Supreme Court Justice] Rose Bird failed to find any capital judgment that passed final muster; when Governor Jerry Brown and Attorney General Kamala Harris refused to defend Proposition 8, which amended the California Constitution to ban same-sex marriage; or when the Obama administration refused to defend the federal Defense of Marriage Act.

My question is stimulated by an interest in consistency and honesty. If Choper has made similar criticisms in the other instances, then he deserves kudos. Frankly, such consistency is rare. - Edwin Osborne, Camarillo

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