Judge Henderson takes on Point Arena parrot case

By Julie Verran

The Independant Coast Observer - 5/4/01

Richard Henderson, the third judge to hear arguments from the County of Mendocino in the Point Arena parrot case, said on April 27 he was not yet familiar with it but will rule within 90 days.

Internationally-known conservation parrot breeders Barbara and Geoffrey Gould were in Ukiah court while their attorneys Linda Mitlyng and William Phillips defended them against the county's third try to have a judge dismiss the Goulds' state counter suit.

The county filed three suits against the Goulds in March, 2000. They had stayed on their 17-acre farm on Windy Hollow Road after the Board of Supervisors on December 20, 1999, ordered them to remove their parrots and vacate their farm by December 31.

They had no real choice but to stay put, since it took them several months to move their parrots to Point Arena at a cost of about $50,000, some of their birds died during the move, and they could not risk another move in mid-winter with birds still recovering. Some of their birds are members of internationally listed endangered species which the Goulds are licensed to own.

The Nicholas turkey firm operates three egg producing farms on Windy Hollow Road, one of them across the road from the Goulds. A neighbor complained to the county on behalf of Nicholas, and county officials were told that the firm would leave Point Arena, taking 10 jobs, if the parrots were not off Windy Hollow Road by December 31, 1999. In fact, the turkey farms and the employees are still there.

Frank Zotter from the county counsel's office said he is new to the case, and when he reviewed the documents he kept waiting to learn what the Goulds' attorneys say county officials did legally wrong. Instead he found vague allegations, without statutes cited.

He asked Henderson to at least remove four members of the Board of Supervisors as defendants (David Colfax is the Supervisor not named in the Goulds' suit). Zotter added that the judge could dismiss the entire suit.

As an example of allegations that officials did various things on Dec. 20, 1999, Zotter said the Goulds' lawyers objected to Supervisor Michael Delbar making his decision based on a conversation with his son.

What's wrong with that?" Zotter said, adding that Delbar could have asked his wife or any other member of his family.

In fact, at the BOS hearing county staff sought to claim that parrots were not birds, so the Goulds could not raise them on agriculturally zoned land. Explaining why he agreed with staff, Delbar, who has a large family, said he asked his four year old son if there would be cows on Old McDonald's Farm, and the child said yes. Delbar went through the different animals in the song, and the child agreed; when he asked if there were parrots on Old McDonald's Farm, the little boy said, no.

The point the Goulds' attorneys made was that Delbar claimed to base a serious and far-reaching decision on a small child's understanding of a nursery song.

Zotter went on to say that his predecessor on the case, Irv Grant, cited statutory immunities for the county officials named in the Goulds' suit, which protect them as government agents.

There may be other remedies available to the Goulds, he said: to seek recall of Supervisors, to vote against them, or go to the District Attorney. Even if the Goulds' attorneys had alleged bribery, that would not have been enough to overcome the immunities of county officials, he said.

Among county staff named as defendants, Zotter went on, Gail Harrie is most minimally involved, attending only one staff meeting.

In fact, Harrie conducted the county code enforcement inspection of the Gould farm in October, 1999, which was attended by reporters from both the Anderson Valley Advertiser and the ICO. The Goulds' attorneys contend that Harrie misquoted Geoffrey Gould in her report of the inspection.

Zotter concluded by saying that somebody is going to be unhappy with any decision made.

Phillips, for the Goulds, said that most of Zotter's arguments were already rejected by Judge Cox, especially the immunities.

"The Goulds didn't file anything until after the county sued them," Phillips went on, adding that they had no objection to the original information from Planning and Building, which was correct.

Phillips asked the judge to look at the whole complaint, and not allow piece-mealing. He said there were two different BOS discussions in December, 1999, but that neither was a proper hearing. He said the Goulds were originally correctly advised by P. and B. in Fort Bragg that they could locate their parrot breeding facility on ag zoned land, and bought the property. Chief Planner Alan Falleri got a letter from a neighbor, and twisted regulations.

"That's what got the county in a problem," Phillips said, and cited several statutes.

The county holds that the Goulds' suit is a Strategic Lawsuit Against Public Participation. Mitlyng said the county's use of the SLAPP statute, which protects the right to petition the government and to openly exercise free speech, would turn SLAPP law on its head.

"We clearly have a probability of prevailing on that alone," in a trial, Mitlyng said. She cited a section of the county's Coastal Zoning Code that would allow the Goulds' operation, but that county staff failed to cite, and asked the judge to look at it.

Judge Henderson asked her for a short brief and more information, and time for Zotter to file a response. Zotter said that after a previous hearing where the county also sought to have the Goulds' suit dismissed, Judge Eric Labowitz found the county likely to prevail in a trial.