In order to prevent further wrongful destruction of property, further retaliation against property owners, further trespass and wrongful entry on to private property, to mitigate the invasiveness of the already existing private nuisance, and prevent further destruction of and damage to, endangered and threatened plant species, Plaintiffs hereby move the Court, the Honorable Justice Stevens presiding, for an order temporarily restraining Pacific Gas & Electric, and their representatives, agents and contractors, until an Order to Show Cause may be properly served and a hearing on the matter held.

STATEMENT OF FACTS

Pacific Gas and Electric Company (PG&E) has an easement over many strips of land in Bonny Doon, which is located in the mountains of Santa Cruz County.  These strips of land underlie power lines, and have since before 1920.  The power lines spread out and into the "Burns Substation" which is operated and maintained by PG&E.  (Exhibit A.)  There are also various other "subsidiary" power lines that do not travel directly into the Burns Substation in the area.  These lines also run over easements that give PG&E the right to maintain the lines, and related egress and ingress.

The easements are 50 feet wide in nearly every case, but they vary in description.  As far as the area residents know, the exact location of the easements is documented only in 2 recorded surveys of the area, one in 1906 and the other in 1963.  These two surveys contradict each other.

The area is heavily wooded, and has been for thousands of years.  Presently, it contains numerous listed endangered and threatened species, which are protected by federal and state environmental protection acts.  (Exhibit B - Endangered Plant Survey, Wm. Taylor, Phd., p.5-10.)  Since before 1920, these woodlands and their rare species have peacefully co-existed with the powerlines. 

Of particular note is a species of manzanita, arcostaphylos andersonii (Anderson's Manzanita), that is named in PG&E's "Endangered Plant Survey" as occurring in numerous places in the area, and it is especially prevalent on and near the easements where the power lines run.  (Id. at 18; see also Santa Cruz Co. Sec. 16.32(b) (defining the area as "Sensitive Habitat".)

PG&E's own report states that the individuals of this species and their habitat are protected by the California Environmental Quality Act whenever there is a threat of degradation of their numbers.  (Id. at 18.) 

Within the last few months, PG&E has prepared for, and implemented a "Vegetation Management" policy in Bony Doon area woodlands, underneath and around the powerlines.  The policy's goals are to make the lines safe for up to 4 years to minimize future maintenance costs, by "aggressively" clearing forestation, removing trees whenever possible, and permanently preventing their return through the application of herbicides.  (See Ex. C, p. 1-4.)  It recommends a minimum clearance of 10 feet around lines with capacities less than 70kV.  (Id. p.6.)  And requires that all "hazard trees" be removed, whether on or off PG&E's right of way.  (Id.)  The policy states "[s]afety, service reliability and cost-effectiveness are best achieved when trees are removed, rather than pruned."  (Ex. C p.2 (emphasis added).)  They have begun the first stage of this project along a 1.5 mile stretch of 60kV powerline that runs along or near Molina and Robles Drives in Bonny Doon.

To do the actual "vegetation management", PG&E hired Renee Godon and Sons from Auburn, California.  PG&E and Godon then began by entering on to private property and marking trees and shrubbery along the powerline for removal or "trimming" with spray paint.  Bright orange circles on the front of a tree means "remove" and a blue circle means "top".  In this process, the defendants marked nearly every tree within what they claimed was the easement along the length of the line, and dozens, possibly hundreds, of trees and large undergrowth outside physical boundaries.  The exact figure is unknown, because the defendants began marking the backs of trees so that the residents would not see which trees were marked for destruction and which were not.  Some were marked, and later cut, more than 80 feet from the line, and a minimum of 55 feet outside the easement, even if it were the defendants claimed it was.

At no time did either named defendant provide the residents with a description of the exact location of the easement, although there were many requests.  (Mackey Dec. :) What they did provide, however, were "release forms" which demanded consent from the landowners for removal of the marked trees, the marked under brush, and then the application of an undisclosed herbicide to ensure the forestry never grew back.  (Ex. D.)  The release form also demanded consent for "dragging" the logs to the road.  Verbally, property owners were told by the defendants that the clearing was to prevent maintenance for 15 years, not the 4 years listed in PG&E's published policy.

Property owners who were hesitant to give consent, because they were shocked by the extent of the marking, were threatened with unlimited personal liability.  (Dec. of __________) Those who persisted in denying consent were threatened with expanded clearcutting.  (Mackey Dec. : .)

Then the defendants began cutting.  And the property owners began scrupulously documenting everything.  The defendants started at the end of the first 60 kV line.  Within a couple of days, it was clear to the property owners and the residents that what the defendants were actually doing was clear cutting what they claimed was the easement, as well as any land outside of the easement that they could get away with.  Trees with orange dots were completely removed, and most trees with blue dots were cut in half 

The property owner at the beginning point of the project had his property around his house nearly completely deforested.  Where once he looked out his window to see a canopy of old firs, he now sees a barren patch of land with scattered wood chippings and cut logs lying about.  He now enjoys a really good view of a powerline. 

Although many individuals of Anderson's Manzanita were taped off by the defendants with yellow and black tape for protection and preservation, many individuals were destroyed by bulldozers and other heavy equipment.  Witnesses believe a few were intentionally torn out of the ground in retaliation for property owners' protests.  One property owner, Russell Mackey, video taped one such intentional destruction by bulldozer.  Mr. Mackey's property, with its orange and blue painted trees, is scheduled to be cut next.  The 8-10 minute tape will be available for the court's viewing at the ex parte hearing if your Honor wants to see it.  Because of the threat of retaliation, and his belief that it is credible, Mr. Mackey is unwilling to formally join this suit.  (Mackey Dec. : .) 

His trees, some perhaps more than a hundred years old, are gone completely.  They will never return in his lifetime.  Previously, these trees sat in the same position for the entire life of the powerline.

The declarations attached to this petition overwhelmingly demonstrate his neighbors, all of whom have ugly orange and blue spray paint all over their trees, are terrified of imminent property destruction.  Nearly every one of them fears retaliation.  Other property owners near other powerlines have the same fears.  Their declarations form the basis of this Motion for Temporary Restraining Order.

POINTS AND AUTHORITIES

The California Code of Civil Procedure states: 

A preliminary injunction may be granted at any time before judgment upon a verified complaint, or upon affidavits if the complaint in the one case, or the affidavits in the other, show satisfactorily that sufficient grounds exist therefor.  (Cal. Civ. Pro. sec. 527(a).)

The section also requires notice be given to the opposing party.  (Cal.Civ. Pro. 527(c).)  Here, opposing counsel was given more than 24 hrs. notice of the ex parte application and expected hearing and both opposing counsels have copies of the complaint filed herein.  (See Declaration of Christopher Dort.)  Because of the nature of the harms involved, and the residents' fears of retaliation, more notice to opposing counsel was not practical.  (See id.)

In evaluating interim harm for purposes of determining if plaintiff is entitled to preliminary injunction, case law requires the Court to compare injury to plaintiff in absence of an injunction to injury defendant is likely to suffer if injunction is issued.  (Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618.)  Showing of irreparable injury and of likelihood of succeeding on claim is sufficient to warrant a preliminary injunction.  (California State University, Hayward v. National Collegiate Athletic Ass'n 47 Cal.App.3d 533.)

Here, the Plaintiffs have met the requirements for a TRO and are likely to succeed at the hearing on the Order to Show Cause.  The declarations filed here in establish that the defendants have already caused substantial, actual irreparable damage to real property through their "Vegetation Management" activities.  The declarations also establish that the "Vegetation Management" project is ongoing in nature and is expected by the defendants to continue through the Spring of 2000 on lines passing over, adjacent to, or near the plaintiffs' properties.  The plaintiffs' properties have already been partially cut, are imminently scheduled to be cut, or will suffer increasing adverse affect by any continued cutting on other properties.

On the other hand, the possibility of damage to the defendants resulting from the granting of a TRO and an Order to Show Cause for approx. 10 days is de minimius.  Defendant PG&E already has plans to continue cutting through next Spring.  Because of this, time is not "of the essence" to the defendants.  The additional cost to the defendants, if any at all, would be slight for a 10 day delay, if the cutting is allowed to continue after a hearing on a preliminary injunction.

Clearly, the danger of immediate irreparable harm to the Plaintiffs far outweighs the need for the defendants to continue their "Vegetation Management" activities.

The declarations, and other documentary evidence and live witness testimony (if acceptable to the Court), that will be available to the Court at the ex parte hearing, establish the defendants have wrongfully entered onto numerous properties and have wrongfully destroyed forestation outside any right of way they may have.  These facts, if proven, establish the required elements of a tortious trespass, at the minimum, and imminent danger of the same to the plaintiffs' and other property owners in the area.

CONCLUSION

Plaintiffs respectfully request the Court to grant an order restraining the defendants until a hearing on an Order to Show Cause can be noticed and held.

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