By Anne R. Keye – Anderson Valley Advertiser, August 15, 1990 and Country Activist, August 1990
I am the Lorax. I speak for the trees. Take direct action against corporate greed.
—Lorax Affinity Group
In a major political coup for Redwood Summer activists, the trial of the ten Lorax Affinity Group defendants arrested June 20th for blockading a log truck at Louisiana-Pacific’s Samoa pulp mill ended last Wednesday in a hung jury. Seven of the twelve jurors voted to acquit the protesters, while the remaining five could not be moved after three days of jury deliberations.
Lisa Henry, one of the defendants, told us, “Humboldt County District Attorney Terry Farmer now faces the choice of retrying the Lorax group at the cost of over $40,000 for Humboldt County or prosecuting the real criminal, Louisiana-Pacific (L-P), who is committing ongoing, daily felony violations of their already lenient water pollution discharge permit.” Henry’s co-defendants who also face retrial are Steven Fein, Ronnie Glick, Kendra Kurihara, Robert Parker, John Thomas Rasmussen, Alexander Ruhe, Bob Serina, David Solnit and Michael Yudowitz.
Although the threat of refiled charges hangs over the heads of the Lorax defendants—an affinity group comprised of activists from Humboldt, Mendocino and San Francisco counties—they feel that their arrests, jail time and trial have been worth the results. All ten defendants were able to testify at length as to L-P’s unsound forestry practices, log and job exports to Mexico, as well as dangerous herbicide spraying. As a result of the trial, D.A. Terry Farmer stated publicly in the Eureka Times-Standard last Friday that he would file criminal charges against L-P for their felony violations. (However, at press time, no such charges have been filed.)
The Lorax’s ability to reach both the jury and public with their message is due in large part to their ability to function together and further both political and legal goals in what is called an “affinity group.” Without such a structure, the cohesion needed to keep a group of diverse activists together and focused on the exhausting process of trial would have been sorely lacking.
But what is an affinity group? Few critics seem themselves to know how to create one or how it works. Affinity groups carrying such names as “The Garlon 6,” “Coyote Circle,” or “The Radical Ions,” are often dismissed as flaky and New Age. It would surprise many to know the “affinity group” has a long history and is not new to Northern California; the term comes from “groupos de afinidad,” which were decentralized, familial anarchist groups formed during the Spanish Civil War in the 1930s.[1] Affinity groups are designed both to maximize individual input through the consensus process (an anti-hierarchical noncombative method of decision making), and also to maximize security by forming intense, bonded relationships not easily infiltrated by outsiders. The affinity group structure was introduced to Redwood Summer coordinators by veterans of the anti-nuclear and peace movement in order to facilitate a safe, grass roots, “bottom up” method of organizing many people in large and small-scale direct actions. The Lorax Affinity Group was the first of the Redwood Summer group to test the affinity group structure all the way through a seemingly bleak trial.
The Lorax Legal Team and Affinity Group
The trial was a long and strange one for Humboldt County and for the court-appointed attorneys assigned to represent the ten defendants. From the outset of trial, the defendants decided to “not let the legal system run away with them,” in the words of one, defendant. The defendants formed the Lorax Affinity Group, met together and drafted a statement outlining how they wanted the legal team to be set up and what legal and political goals they wanted to pursue at the trial.
The defendants decided on a legal team comprised of the eight court-appointed criminal law attorneys, coordinated by Humboldt County environmental lawyer, Ken Collins. The political direction of the trial and the main decision-making were to be determined by the defendants themselves.
The goals of the trial were stated as not only legal (protesting the heavy one-year probation, fines, and four-month suspended sentences hanging over the defendants), but highly political as well. The Lorax Affinity Group wanted to reach both the jury and the public with the L-P issues, as well as to jam up the courts.
The lawyers didn’t quite know what to do with the Lorax Affinity Group. At first, Attorney Collins joked in his closing argument that at first he was “embarrassed” by the group’s picketing, press conferences, and communal lunches on the courthouse lawn. “Why don’t they take it somewhere else?” he lamented. The unorthodox defendants refused to compromise and continued to attend lawyers’ meetings, engage in vocal power struggles, and pursue the media.
After a few days, however both the lawyers and the group warmed to each other. The group began to respect the legal work and genuine concern of the lawyers, and the lawyers came to respect the group’s concern with both the political issues and the trial.
The trial, fondly called “The Trial from Hell”, settled into a daily give-and-take, punctuated by the lawyers’ desperate attempts to shield the Lorax from the media or make them dress “appropriately.”
“Both the defendants and lawyers worked pretty well together,” remembers defendant Lisa Henry, “but it was a constant battle to get the lawyers to include us in the decision-making process. They kept forgetting. When they said ‘Trust me’ is when we really pushed for input.”
The Lorax made the lawyers use consensus process, which the defendants felt was integral to carrying out social change inside or outside the courtroom. The lawyers recalled a legally suicidal publicity poster portraying the judges of Humboldt County as lackeys of L-P corporados. The Lorax recycled legal papers and chastised the lawyers for drinking coffee from styrofoam cups. And so on for three weeks.
As the trial wore on, life grew financially burdensome for both the Lorax—whose members had either quit, been fired, or had taken leave of their jobs—and the lawyers, who were making only half their normal wages from the court. The Lorax, however, pulled together as a true affinity group: members arranged to sleep in backyards, beaches, forests, and in people’s homes; they cooked communally, shared the few cars available, wrote press and info packets by committee, and rented a room-cum-office. Plunging quickly into debt, the Lorax received modest funding from San Francisco Earth First!. And, in a burst of ingenuity, one defendant designed a fundraising t-shirt based on the Dr. Seuss Lorax, lining up a local screenprinter to print at cost—labor, ink, and screens donated. With the money from the T-shirts, the Lorax was able to stay afloat.
The Defense
The Lorax defense hinged not upon a “defense of necessity,” nor on a technical defense, much to the surprise of prosecuting Deputy District Attorney Kucharek, but instead upon a somewhat similar, but more pragmatic argument based on California State Penal Codes 692 and 694. These codes state that reasonable actions taken to prevent a public offense are not criminal, but legally justified.
The Lorax defense, Penal Codes 692 and 694, is rarely allowed in political cases and is more commonly used in assault cases, where immediate action is used by a defendant to prevent rape or murder.
The defense of necessity, in contrast, is an argument in which the defense tries to prove that crimes committed by the accused were to prevent a “higher crime” or greater harm. A common example is trespassing into a burning building to save a child. The defense of necessity is almost always disallowed in political cases—with the exception of some anti-nuclear protests—and requires the defense to prove six stringent criteria for acquittal, including “exhaustion of all legal means.”
The arguments differ in that the defense of necessity is very philosophical and almost impossible to win. The defense used by the Lorax is more practical, if one can prove that a crime was being committed by the aggressor and that one’s actions in response were reasonable under the circumstances. Penal Codes 692 and 694 also permit a mere “reasonable belief” that a crime is being committed and doesn’t require that all legal means be exhausted.
The Lorax defense presented evidence which documented L-P’s ongoing violations of their toxic effluent emission’s permit, the test for which L-P helped design. Out of the valid 24 tests of the chronic toxicity levels of effluent discharged into the Pacific Ocean over the last 5 months by L-P, 19 tests were in violation of L-P’s discharge permit. The offenses ranged from 1.3 to 128 times the amount deemed “legally” dischargeable. One test in 1989 showed that L-P was discharging 400 times the legal limit. Bill Rodriguez of the California Water Quality Control Board testified to L-P’s “ongoing and repeated” violations over his last two years on the Board.
These self-monitoring tests, administered by Humboldt State University, as well as a University of California extension at Bodega Bay, are taken several times a week. The monthly reports are sent directly to L-P, Which compiles the data, and sends them—signed by Western Division L-P Representative, Joe Wheeler—to the Water Quality Control Board within a month. Because L-P has full knowledge of their offenses, their violations of the discharge permit are not merely “negligent” misdemeanors, but ongoing felony offenses.
The defendants testified over two days as to their intent June 20th, deftly and somewhat naively parrying the D.A.’s attempts to malign their motives.
“Isn’t it true that you wanted to block the entire road?” accused Kucherek.
“No,” responded a defendant, “We wanted to block the log truck in one lane. There were other protesters blocking the northbound lane. Why weren’t they arrested?”
In response to accusations that the defendants had blocked a critical access road to the Coast Guard station at the end of California State Highway 255 without regard to public safety, one defendant responded, ‘They’re Coast Guard. I assume they can get out in any emergency through water means.” The courtroom erupted in laughter.
The prosecution’s arguments were based on the technical fact that the defendants had stipulated as to their presence at the demo and their blockading of a log truck. It also hinged on an argument that the defendants’ actions were neither lawful nor reasonable. In his closing rebuttal, no holds barred, Kucharek accused the Lorax of changing the Constitution’s “We the People” to “We the Ten,” followed by a misquote and complete misinterpretation of Martin Luther King and his nonviolent demonstrations.
“These people took the law into their own hands,” concluded Kucharek. “What if everybody took the law into their own hands?” The specter of widespread anarchy rose almost visibly in the courtroom, threatening to rend the social fabric of America if the jurors dared consider acquitting the ten defendants.
Kucharek’s arguments were reminiscent of the prosecution’s arguments in the Humboldt Lumber Strike trial of 1935, in which, ironically, 10 defendants were tried in Eureka for “inciting riots.” They were also called communists and anarchists. It would have irked Kucharek to know that the prosecution couldn’t convict the 10 anarcho-commie defendants in 1935 either.
The defense’s closing arguments were divided among the eight defense attorneys and the two pro per defendants. Ken Collins described meeting the defendants for the first time, somewhat daunted by their unorthodox methods, but encouraged by their dedication and knowledge about the relevant issues. Neal Sanders re-explained the law point by point. Gena Rae Eichenberg read relevant parts of The Lorax to the jury, leaving them with images of L-P’s “schloppity-schlopp” and environmental ravishment to haunt their weekend dreams.
Bill Bragg capped off the defense arguments by throwing the hundreds of pages of evidence of L-P’s offenses onto Kucharek’s desk, shouting “I went to the D.A.’s office today to see if anyone had filed charges since yesterday. They hadn’t. Now, why don’t you do something about it?” Strident and angry, Bragg admitted that he’d been asleep on the issues before the trial, but was now awake. “Rome was a democracy before Caesar,” said Bragg, “and Germany a democracy before Hitler. Let us not say that America was a democracy before the corporations.”
The jury argued and deliberated for three days, while the defendants and lawyers hung out on 20-minute standby. On Wednesday the jury came in, frustrated and unable to reach a verdict. The jury remained split at 7 to 5, in favor of acquittal. At one time the split was reported as high as 9 to 3 in favor of the Lorax.
The hung jury was celebrated as a victory for the Lorax. One of the lawyers pointed out that the District Attorney normally wins 95% of his cases, so that any verdict other than conviction was truly a triumph.
The Lorax also won other victories. The lawyers became more radicalized over the month of trial, and lost some of the cynicism acquired from years of working within the legal system. One lawyer declared that, goddamit, he, too, was, a member of Greenpeace. Another began reading Aldo Leopold’s A Sand County Almanac and went to visit and consult with other Redwood Summer activists in jail on his own volition. The jurors, too, had been affected; several reported that they’d discussed approaching the D.A. themselves to insist that he file criminal charges against L-P.
Whether Humboldt County residents follow through with what the Lorax helped start remains to be seen. Several Lorax have moved to Arcata, in part to help locals like Ida Honorof, Andy Areneo, the North Coast Environmental Center, and the California Alternative to Toxics fight the L-P toxic issues; but their help alone is not enough. Without constant political pressure from both inside and outside Humboldt County, D.A. Terry Farmer will certainly not pursue L-P to trial. Check Farmer’s list of past campaign contributors if you have any doubts…
L-P and the corporate mentality towards waste disposal in Northern California knows no borders. As Mendocino County residents know, L-P has a long and sordid history of polluting both water and soil in the Ukiah area. And what makes us so certain that Georgia-Pacific, the company that mopped up a PCB spill with paper towels and garbage bags and then burned the deadly pollutants, is playing clean on the Mendocino Headlands?
Maybe it’s time Northern California listens to children’s books which claim that we are all the Lorax, the whistle-blowers. And maybe it’s time for the juries to acquit the Lorax “kids” who blow the whistles. For, in the words of Dr. Seuss,
Unless
Someone like you does something
Nothing will get better.
It won’t.
And it’s true. We all share one big backyard.
Note:
[1] Strictly speaking, most of these formed before the 1936 revolution, and they were predominantly formed among the membership of the anarcho-syndicalist CNT to serve very specific defense purposes. That said, their evolution to their application as used by Earth First! more or less is in the same spirit.