By Reilly Stephens
Friday, May 11, 2018
In 2007, a fire broke out on Moonlight Peak in northern
California, burning 65,000 acres of public and private lands before being
subdued. Government investigators pinned responsibility on Sierra Pacific
Industries (SPI), a subcontractor of which had been logging in the area. In Scorched Worth: A True Story of Destruction,
Deceit, and Government Corruption, journalist Joel Engel catalogs the years
of frustration and malfeasance that followed as state and federal authorities
pressed a frivolous case backed by their own intransigence.
There are specific procedures for determining the origin
point and cause of a fire, though the layman might judge that the process often
operates with a scientific rigor equivalent to reading entrails. Sometimes
investigators get lucky, and can track down a campfire or cigarette butt. But
here the investigators found more or less nothing, and more or less avoided the
procedures that might impose a semblance of objectivity.
Their ultimate conclusion rested on the tenuous
assumption that a bulldozer the subcontractor operated drove over a rock, and
the resulting spark landed in some brush nearby. This is tenuous because, while
equipment can throw off sparks, in this case the theory required that the spark
smolder for an hour or more before igniting—and contemporary photographs and
computer models show the fire started somewhere else entirely. As the book goes
on, it becomes clear that no credible case can be made against SPI. You’ll be
forgiven for imagining this means the government eventually agreed with the
obvious.
Engel compels the conclusion that the case against SPI
was more about SPI’s bank balance than its culpability. State and federal
authorities can’t profit from a lone arsonist, but shaking down the
second-largest lumber producer in the country promises rich rewards. (At the
time, the California Department of Forestry and Fire Protection, a.k.a. Cal
Fire, diverted settlement money into an off-the-books slush fund used to buy
goodies for the department.) Many companies prefer to pay the authorities to go
away, so a few fudged reports need not be an impediment.
Rather than settle, SPI preferred to fight. The company’s
patriarch is one Archie “Red” Emmerson, an octogenarian self-made billionaire
who could well be the backwoods version of Hank Rearden. A child of the
depression, Emmerson took the reins of a failing mill from his unreliable
father and built it into a thriving enterprise through diligence and risk.
At first, the industry operated by buying logging rights
to federally managed forests. When the environmental movement began restricting
access to timber on public lands in the 1970s, Emmerson had the foresight to
buy up a portfolio of private forests that now stands at some two million
acres, allowing him to grow as competitors fought over meager government
rations. (The spotted owl crisis that vexed the logging business in the 1980s
accrued to Emmerson’s benefit, driving up prices at a time few others could
profit from it.) Ol’ Red is not the sort of man who likes to pay for something
he didn’t do.
But the power the authorities can bring to bear outstrips
even the billionaires among us. The case against SPI was so flawed at least one
government attorney appears to have been reassigned after finding his scruples,
only to be replaced by others not so encumbered. Yet the judge in the federal
proceeding so mangled the pretrial rulings SPI was ultimately compelled by risk
of bankruptcy to settle with the federal government for some $122 million in
cash and acreage.
A California state court judge, assessing essentially the
exact same case, saw things otherwise: throwing the state of California out on
its hump with the sort of brimstone opinion that haunts lawyers’ nightmares and
an order to cover $32 million dollars in SPI’s legal costs as sanction for the
misbehavior. SPI is now appealing the federal settlement, armed with the state
judge’s catalog of the long train of abuses and usurpations that extorted it.
Engel bounces back and forth between Emmerson’s Horatio
Alger biography and the fire investigation in short chapters, some lasting only
a paragraph or two. The material is compelling, although this temporal tennis
match makes each thread a bit hard to follow. Those without a background in
forestry will find themselves consulting Google more than once.
Engel sometimes resorts to clunky conceits to weave
exposition into present events, such as speculating that his characters might
have known the obscure information he wishes to dump on the reader. For
example, the Forest Service employee tasked with spotting fires from afar “may
well have learned at some point that the Red Rock lookout was originally built
in 1941 on this 7,600-foot peak two miles south of Diamond Mountain.” But
overall, he argues well that the government’s case was made badly.
As Engel points out, logging companies “are often thought
of as little more than rapists of Eden.” But the truth is more complex. It’s
not in an industry’s long-term interest to deplete the supply of input
materials, and fires damage not just the environment but the bottom line. SPI
self-imposes harvest quotas on its privately owned lands, the better to ensure
long-term viability.
Incentives to behave responsibly are not guarantees
thereof. Some logging companies certainly have started fires, and even
responsible companies fall prey to bad apples. Engel suggests the actual cause
of the fire may have been arson, set by a serially intoxicated young malcontent
and erstwhile employee of the subcontractor.
Of course, sometimes companies impose costs on society
they can rightfully be asked to reimburse. But the FernGully fairytale of burly
lumberjacks denuding Gaia for fun and profit is hyperbole, and at least as
concerning (if not more) is that an unjust exercise of authority of the state
can coerce even the most powerful of its citizens to cry uncle.
Former assistant U.S. attorney turned defense attorney
and blogger Ken White (best known on on the Internet under the moniker PopeHat)
wrote a few years ago about the culture of a U.S. Attorney’s Office, which can
cause even the honorable to lose perspective: “When a defense attorney asserts
that a prosecutor violated a defendant’s rights, that attorney is attacking
your brother or sister, your comrade in arms… it became easy—natural—to view
allegations of misconduct as something that defense attorneys cynically pursue
for tactical advantage.” White realized the depth of this problem after he had
switched to criminal defense “by watching how the system crushed indigent
clients, and by how it could destroy the lives of even wealthy clients with
minimal effort or cause.”
Few are inclined to pity the billionaire, but all should
understand that the institutions powerful enough to bring down the captains of
industry wield the same power against each of us. Anatole France once scoffed
that the law’s idea of equality is to bar rich and poor alike from sleeping
under bridges, yet no more virtuous is a law that places the rights and
liberties of rich and poor alike at the sufferance of authorities with dollar
signs in their eyes. The same system that shook down SPI shakes down average
citizens to buy margarita machines for bureaucrats. The main difference is the
corporate shakedown’s greater profit margin.
On September 3, 2007, a fire ignited on Moonlight Peak.
As this review goes to press, the case awaits the U.S. Supreme Court to take it
up.
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