UNTOLD STORIES: What was Ken Miller's role in the drafting of the PL Lawsuit?

Part of the answer is found here.

The filing of the PL lawsuit has been the hallmark of Gallegos' tenure as DA. He claimed to have "discovered" evidence of fraud. Based on this story in the North Coast Journal, it appears to me that the case sat in a box because it lacked merit, much to Ken Miller's frustration. In Paul Gallegos and Tim Stoen, it appears he found someone who was willing to resurrect it, and pursue it.

During the Recall a furor erupted over e-mails alternately described as "leaked" or "stolen"* from the DA's office. The e-mails dealt with Ken Miller's involvement in the PL lawsuit and though the papers reported the existence of the e-mails, none reported on the significant content.

Specifically,

1.) That others in the DA's office had questioned Ken Miller's presence in the office, with regard to the PL lawsuit... that it is quite clear Ken Miller was actively involved in the drafting of the Palco suit... stating that " We (WE - emphasis added) have the docs if you want to include this kind of thing in your complaint..." ...the same Ken Miller who professed to be stunned that the lawsuit was filed, and later had to fess up and admit his involvement.

2.) That Tim Stoen at one point says that he is going to have to give Ken Miller the bad news, that there is no way the suit will fly, and that

3.) A few days later, Stoen comes back and says that he has found a way to make it fly.

That is only part of the untold story of Paul Gallegos and the Recall. For those who are interested, the text of those e-mails are included below.

It is important to understand that in the 90s, Ken Miller was a co-founder of BACH, (Bay Area Coalition for Headwaters), and that his efforts to "get Palco" encompass a decade long effort. ( http://www.treesfoundation.org/affiliates/update-77 ) BACH claims that "More recently, we have generated media interest in the tree-sits and litigation against Maxxam/Pacific Lumber."

Other significant documents include Richard Salzman, Gallegos' chief fundraiser turned Campaign Manager's procuring a paralegal's read as to how Gallegos and Stoen can establish a "Trust Fund" to solicit, accept and use special interest money to fund the PL lawsuit. ( see Read First: Salzman's Plan post on this blog.

This is followed by Gallegos' taking that proposal to the Attorney General's office, stating that they will not be "influenced" by such funding, and further contending that, since they would not accept donations from any competitors of Pacific Lumber, it would not be corruption.

But they were free to accept "donations" from EPIC, Earth First!, and Ken Miller's Humboldt Watershed Council, Ken Miller's BACH (Bay Area Coalition for Headwaters), Ken Miller's Salmon Forever, and other organizations who are part of an ongoing and longstanding effort to destroy Pacific Lumber Company.

The private funding of a public lawsuit, special interest groups using the public judicial system to further their agenda, turning the DA's office over to the activists - that's what is really wrong with the DA's office.

And it's not what people who voted against the Recall thought they were getting.

Richard "R Trent Williams" Salzman calling it a conspiracy theory does not negate the facts.

Note: * Many people believe it was Tim Stoen himself who "leaked" these documents, and a reading of his history in the People's Temple certainly backs up this theory. I find it difficult to believe he would do so based on the fact that the content here that so clearly shows his and Ken Miller's actions, but perhaps from his perspective it shows him gallantly pursuing the demon, charging ahead "for the cause." And in his zeal, perhaps he couldn't perceive it as being a negative, couldn't imagine that anyone would see it as wrongdoing. It certainly provided for a distraction from the issues, and garnered sympathy for his beleaguered Paul.

***
From: Stoen, Tim
Sent: Monday February 10, 2003 7:33 AM
To: 'Ken Miller'
Subject: RE: PL rate of harvest

Yes, Ken, I want it.

Thanks,

Tim

-----Original message-----
From: Ken Miller (mail to salmonhood@redwoods.quik.com)
Sent: Sunday, February 09, 2003 7:32 AM
To: Stoen, Tim
Subject: PL rate of harvest

Hello, Tim,

I am relieved that you are still on this, it is more important than ever, as PL struggles to defeat the only agency which has had the guts and integrity to try and protect our community from the nuisances related to PL's liquidation logging agenda.

I have a document that might be useful to your argument that the 176 is a big deal. It's PL's appeal to the State Water Board of the Regional Water Board's attempt to impose restrictions in freshwater. It is a 50 page petition. The central argument is the breach of contract. PL argues, ad nauseum, that the 176mmbf/yr is central to the Headwaters Agreement, that PL would never have entered into this agreement absent this assurance, etc.

"... the central purpose of the Headwaters Agreement for PALCO was to provide regulatory certainty that it would be able to harvest a minimum of 176.2mmbf/yr in the first 10 years of the Agreement." PL added minimum to the assurance, I believe the actual arrangement was =/- 10%.

PL has argued this repeatedly.

Fraud vitiates contractual assurances, I am told.

I can bring it by if you want it. Ken

___________
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From: Stoen, Tim
Sent: Tuesday February 18, 2003 8:40 AM
To: 'Ken Miller'
Cc: Gallegos, Paul; Vadas, Nandor; Wade, Robert
Subject: RE: meeting re PL suit

Ken,

Paul Gallegos and I can meet with you Thursday, February 20th (this week) at 11 a.m. in our office.

I have the majority of a complaint prepared, and will be working on it all week. I do this to force myself to think out the implications of the elements we must prove for fraudulent concealment, including proximate causation. I still have not made a decision to file, but because of the importance of the case, want to make sure I have considered the proof problems as fully as possible before making a final decision.

Please advise if Thursday at 11 works for you.

Tim

-----Original message-----
From: Ken Miller (mail to salmonhood@redwoods.quik.com)
Sent: Saturday, February 15, 2003 9:10 AM
To: Stoen, Tim
Subject: meeting

Hi Tim, I wd like to meet with you to go over the potential filing, in case I can help with any questions. I am pretty available, let me know a good time, Ken.

--
Ken Miller
(home address deleted)
(note: phone numbers will not be included in this post )

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From: Stoen, Tim
Sent: Tuesday February 18, 2003 5:23 PM
To: 'Ken Miller'
Subject: meeting

Ken,

Paul Gallegos is going to have Worth Dikeman also review the complaint from a very conservative point of view.

I have almost reached the cause of action section. As you can see from the introduction, there are only two causes we can allege at this late date" (1) fraudulent non disclosure for the purpose of avoiding EIR recirculation. (2) fraudulent concealment to FWS and others in lobbying for Option 25.

Please look over all of the factual materials and make corrections or suggestions. I have probably made a number of factual errors because I have not yet gone back to check references.

As you can see I have used alot of your work verbatim.

Tomorrow I will add the recirculation and lobbying elements, and then the three causes of action and send them to you.

Please know we have not yet made a final decision.

Thanks for your great help.

Tim

PAUL V. GALLEGOS
District Attorney of Humboldt County
TIMOTHY O. STOEN
Assistant District Attorney
NANDOR VADAS
Deputy District Attorney
825 Fifth Street, 4th Floor
Eureka, CA 95501
707 445-7416
Attorneys for Plaintiff

SUPERIOR COURT OF CALIFORNIA
COUNTY OF HUMBOLDT
______
THE PEOPLE OF THE STATE OF CALIFORNIA Plaintiff
COMPLAINT FOR CIVIL PENALTIES, INJUNCTION, RESTITUTION vs

this is page one of a multi page email. the other pages are not included here

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From: Stoen, Tim
Sent: Wednesday February 19, 2003 4:19 PM
To: Gallegos, Paul
Cc: Vadas, Nandor; Dikeman, Worth; Dawson, James
Subject: Palco Jordan Creek suit

Paul,

I regret to inform you that after researching every angle, there is no way we can avoid the statute of limitations defense on the PALCO Jordan Creek scam. CCP 338 gives a 3-year period for fraud. The only way to get around this is to charge conspiracy with a crime and an overt act occurring within four years.

A corporation cannot be in conspiracy with its own employees or subsidiaries. Therefore the only possible co-conspirator is the consultant, William Weaver. But we have to show he conspired to do the specific violation that occurred within the 4 year statute (and is also an overt act within the statute.)

That violation was getting Richard Wilson, Head of CDF, not to recirculate the EIR under 14 CCR 15088.5, which was violated February 25, 1999. We have absolutely no evidence Weaver personally so conspired, or that he even had knowledge of that EIR recirculation. As a matter of ethics, therefore, we cannot proceed.

I have given Ken Miller the bad news, and I have canceled out appointment for tomorrow at 11.

I encouraged him to send us every other case he comes across so we have the opportunity to act in a timely manner. He is very happy with your willingness to prosecute let the chips fall where they may.

Tim

___________
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From: Stoen, Tim
Sent: Wednesday February 19, 2003 8:05 AM
To: 'Ken Miller'
Subject: Re: SoLs

Ken,

Here is my memo to Paul Gallegos spelling out the reasons. There is one last minute gambit I am pursuing. If it develops, I will advise you immediately.

MEMO TO PAUL GALLEGOS

Paul,

I regret to inform you that after researching every angle, there is no way we can avoid the statute of limitations defense on the PALCO Jordan Creek scam. CCP 338 gives a 3-year period for fraud. The only way to get around this is to charge conspiracy with a crime and an overt act occurring within four years.

A corporation cannot be in conspiracy with its own employees or subsidiaries. Therefore the only possible co-conspirator is the consultant, William Weaver. But we have to show he conspired to do the specific violation that occurred within the 4 year statute (and is also an overt act within the statute.)

That violation was getting Richard Wilson, Head of CDF, not to recirculate the EIR under 14 CCR 15088.5, which was violated February 25, 1999. We have absolutely no evidence Weaver personally so conspired, or that he even had knowledge of that EIR recirculation. As a matter of ethics, therefore, we cannot proceed.

I have given Ken Miller the bad news, and I have canceled out appointment for tomorrow at 11.

I encouraged him to send us every other case he comes across so we have the opportunity to act in a timely manner. He is very happy with your willingness to prosecute let the chips fall where they may.

Tim

-----Original message-----
From: Ken Miller (mail to salmonhood@redwoods.quik.com)
Sent: Sunday, February 09, 2003 11:29 AM
To: Stoen, Tim
Subject: SoLs

Tim, If you would spell out for me the reasons why this case cannot be brought, I would very much appreciate it. I do not yet understand.

I was excited about the prospects of the $250,000,000, which would sure help the County, even tho it is a small fraction of what Hurwitz has extracted, and an even smaller fraction of the costs of the damages he has left in his wake.

Your proto-petition is succinct and impressive.

Thanks, Ken
--
Ken Miller

(end of this page)

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From: Stoen, Tim
Sent: Thursday February 20, 2003 1:57 PM
To: Gallegos, Paul
Cc: Vadas, Nandor; Dikeman, Worth
Subject: Re: Revival of Palco Jordan Creek suit - meeting Friday at 3 p,m,

Gentlemen,

I think we can save the PALCO suit by suing for "unfair" business practice rather than "fraudulent." for there is no competing statute of limitations for unfair. I have asked Ken Miller to come to the office tomorrow to discuss it. I will have a draft complaint ready to be reviewed beforehand. Would appreciate all of your showing up - Paul's office - if you are free.

Tim Stoen

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From: Stoen, Tim
Sent: Thursday February 20, 2003 6:22 PM
To: "Ken Miller"
Subject: Re: New draft, new meeting time of 2:30 p,m,

Ken,

Here is the revised draft. Still have not finished. Please, if you have time, double check all the facts I have lifted from your work, including verbatim quotes and exact dates.

Tomorrow, I will e-mail to you the remainder before 11 a.m.

PAUL V. GALLEGOS
District Attorney of Humboldt County
TIMOTHY O. STOEN
Assistant District Attorney
NANDOR VADAS
Deputy District Attorney
825 Fifth Street, 4th Floor
Eureka, CA 95501
707 445-7416
Attorneys for Plaintiff

SUPERIOR COURT OF CALIFORNIA
COUNTY OF HUMBOLDT
______
THE PEOPLE OF THE STATE OF CALIFORNIA Plaintiff NO. CV-
COMPLAINT FOR CIVIL PENALTIES, INJUNCTION, AND RESTITUTION vs
(Business & Professions Code)
THE PACIFIC LUMBER COMPANY Section 17200, in re: Headwaters Forest Project
and DOES 1 through 10
Defendants
Unfair Business Acts

this is page one of a multi page email. the other pages are not included here.

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From: Stoen, Tim
Sent: Thursday February 21, 2003 11:43 AM
To: 'Ken Miller'
Subject: Re: Intimidation

Ken,

YES. GET ME AS MANY FACTS AND DATES OF THE INTIMIDATION ASP.

I will create a separate cause of action entitled Unfair Personal Attack on Opposing Scientist.

Tim

-----Original message-----
From: Ken Miller (mail to salmonhood@redwoods.quik.com)
Sent: Saturday, February 21, 2003 9:49 AM
To: Stoen, Tim
Subject: intimidation

PL orchestrated a campaign to intimidate and impeach Dr. Reid, including calling her "almost irresponsible" in the Times Standard, fueling a sign-on letter by extremist Congresspeople including Richard Pombo, Dooley, Helen Chennoweth, one of the Alaska boyz, et al to her than boss at the USFS in DC trying to get her hands off private lands, a letter from Jared carter to Directors of CDF and DFG admonished them to avoid "creating a paper trail" in their deliberations and to abide by the "Mutual Defense Pact" of the Headwaters Agreement (para 7) related to rate of cut in Freshwater and Elk, an outgrowth (sic) of the Jordan scam...

We have the docs if you want to include this kind of thing in your complaint...Ken
--
Ken Miller
(home address deleted)
(phone number deleted)

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From: Stoen, Tim
Sent: Thursday February 25, 2003 11:22 PM
To: Dawson, James
Cc: Gallegos, Paul
Subject: Re: Use of consultants/percipient witnesses

Jim,

Paul indicated that you were wondering about Ken Miller being in the office yesterday reading the complaint.

Ken was reading the complaint for the purpose of making sure the documentary information he had provided me was accurately summarized in the complaint.

I also used him as an eyewitness on what William Weaver's responses had been to accusations of a scam. Had I not had this benefit, I would have been forced, having circumstantial evidence only, to charge Weaver with intentional misrepresentation, not reckless misrepresentation. So justice towards Mr. Weaver was, hopefully, accomplished.

Ken Miller had nothing to do with my decision to file, my choice of theories, or such other aspects of the complaint.

The only way environmental torts can be litigated is to rely on both eyewitnesses and consultants in the private sector, all of who obviously have some ax to grind. My job is to separate the chaff from the wheat.

The duty of restricting disclosure of our investigation still applies, but only with respect to people who do not have a legitimate interest. Consultants helping us to understand the administrative data do have a legitimate interest.

Please advise if you have questions or wish to discuss this further.

Tim