Builder Sues Forest Service Workers Under RICO Act

Biologist Robin Eliason has been a model employee of the U.S. Forest Service since 1989, winning a certificate of merit every year and establishing a reputation as the government’s expert on bald eagles in the San Bernardino National Forest.

But now Eliason, her husband, Scott, a Forest Service botanist, and their boss, San Bernardino National Forest Supervisor Gene Zimmerman, have had to hire their own attorney to defend them in a lawsuit accusing them of racketeering.

San Diego businessman Irving Okovita, who filed the suit, alleges that the Eliasons, Zimmerman and Sandy Steers, a local environmental activist, engaged in a criminal conspiracy to block the Marina Point development, a luxury condominium project Okovita wants to develop with an Arizona company in this hamlet on the north shore of Big Bear Lake.

Okovita sued under the federal Racketeer Influenced and Corrupt Organizations Act, a statute originally passed in 1970 to strengthen the government’s arsenal against mobsters and drug lords. As time has passed, the law has been used against a variety of individuals and groups. Legal experts, however, said they believed this was the first time the law had been targeted at Forest Service employees.

The three Forest Service employees and Steers said the charges against them are patently false. The government workers maintain that they were acting in their official capacity as Forest Service employees and have done nothing wrong. Steers said Okovita’s suit was brought partly “to intimidate other activists from speaking out. That won’t work,” she said.

But more than a month after Okovita filed his suit, the U.S. Department of Justice, which routinely represents federal employees accused of wrongdoing, has not moved to defend the three Forest Service employees, even though an attorney from the Forest Service’s parent agency, the Department of Agriculture, recommended to Justice that it provide lawyers for the employees, according to sources close to the case.

Okovita’s project came to a halt last May when a federal judge in Riverside issued a preliminary injunction saying that two activist groups, Friends of Fawnskin and the Center for Biological Diversity, had demonstrated that the development had “the potential to both harass and harm the bald eagle,” which is protected under the federal Endangered Species Act. The plaintiffs have shown that “a violation of the Endangered Species Act is at least likely in the future,” U.S. District Judge Robert Timlin said in a written ruling.

Frank Fraley, a Los Angeles lawyer representing the Forest Service employees, said the suit against his clients was filed in retaliation.

Timlin’s ruling briefly cited a report by Robin Eliason without mentioning her name. Timlin, in fact, relied more on the reports of two other experts who were retained by the plaintiffs for the case. The judge found them more persuasive than experts retained by the developer.

Okovita’s suit accuses both Eliasons of providing false information to government agencies in an effort to halt the development and to help the Forest Service acquire the land cheaply. Moreover, Okovita alleges that by killing the project, the Eliasons sought to increase the value of their nearby residence.

The suit further contends that the Eliasons illegally used their government computers to communicate with opponents of the project, thereby engaging in mail and wire fraud.

Zimmerman, the forest supervisor, “knowingly agreed to facilitate this scheme,” the suit said.

Okovita’s attorney, S. Wayne Rosenbaum of San Diego, said his client had lost millions of dollars because of delays in the project, which would include 132 condominiums, a 175-slip marina and tennis courts.

The Marina Point development would be on 12.5 acres on Grout Bay on the north shore of Big Bear Lake. Okovita bought the land, once the site of a trailer camp, in 1981.

The plans call for 338 trees to be cut down. For years, the area has been known locally as “Cluster Pines” because of the dense stands of trees. Bald eagles spend winters in the area, perching in pine trees and swooping down to the lake to feed on fish.

Steers’ attorney, Jim Wheaton, of the First Amendment Project in Oakland, called the RICO case “a classic SLAPP [Strategic Lawsuit Against Public Participation] suit. It has been filed to retaliate against people who had the good sense and strength to stand up for what they believe and to punish them for taking advantage of their constitutional rights.”

Later, Robin Eliason said in an interview, “I haven’t done anything wrong. I am confident of that.” She earns $69,000 a year from her Forest Service job and could face a multimillion-dollar judgment.

Added her husband, Scott, who makes $64,000 a year: “We acted properly in our official capacity with the Forest Service.”

He said their involvement in Friends of Fawnskin “was completely appropriate and within our rights,” under the 1st Amendment. They live in Fawnskin, attended meetings of the group, and e-mailed other members.

Both work at a San Bernardino National Forest ranger station near the proposed development. They emphasized that they were speaking on behalf of themselves, not for the Forest Service.

Several former Justice Department lawyers, interviewed Friday, said they were surprised that the government is not providing lawyers to the Forest Service employees. Among them is Duke University law professor Catherine Fisk, a labor law specialist who represented government employees when she was a Justice Department attorney. Fisk said the Justice Department’s hesitation could send a chilling message to other government workers.

On Friday, Charles Miller, a Justice Department spokesman in Washington, said the department had not made a decision on whether the employees would be represented and that he could not say what the criteria were for making such a decision.

W. Matt Mathes, spokesman for the Forest Service’s Western regional office in Vallejo, said he could not comment on the case other than to “remind you that these are just allegations.” But he emphasized that all three government defendants are highly regarded employees.

“Gene is considered a highly successful forest supervisor,” Mathes said, referring to Zimmerman, who earns $153,000 a year. “The Eliasons are considered leading biologists in their fields in Southern California.”

Fraley, who represents the three Forest Service employees, said his clients “did exactly what their jobs required them to do.”

Zimmerman, as the supervisor of the San Bernardino National Forest, is the point of contact for other federal agencies seeking information from the Forest Service, Fraley said. “He instructs his biologists to render an opinion, and in this instance the Eliasons did it. They based their opinions on sound science. They did nothing wrong.”

Fraley was recruited to represent the government employees by Andy Stahl, the director of Forest Service Employees for Environmental Ethics, a pro-environment group based in Eugene, Ore., who said they needed legal help while the Justice Department decided whether to represent them.

“Government employees, just like private citizens, can join the Boy Scouts, Chamber of Commerce, Sierra Club, National Rifle Assn. or Friends of Fawnskin,” because of the 1st Amendment right of freedom of association, Stahl said.

Because the three were acting within the scope of their jobs, Fraley said, they should be entitled to immunity from suit under the long-established legal doctrine of “sovereign immunity.” Fraley said he would raise that issue and several others in a forthcoming motion to dismiss the lawsuit.

A ruling to the contrary would have broad ramifications for government agencies, Fraley said. If a permit applicant could sue government employees any time it didn’t like their scientific analysis, “it would make it impossible for government agencies to function,” he said.

But Rosenbaum, the developer’s attorney, alleges that the Forest Service employees used their government positions to act “under color of law” for improper purposes.

“Defendants were not at all concerned about the bald eagles or the effect the project might have on the eagle,” the suit alleges. Rather, Rosenbaum said that the defendants wanted to kill the project, “which would serve to increase their own property values.”

In particular, the suit alleges that Scott Eliason improperly advised Friends of Fawnskin on ways that the project might be derailed and that Robin Eliason prepared an inaccurate report on the bald eagle situation in an effort to block the project.

Eliason said she originally prepared the report in 2000 as part of an overall Forest Service land management plan for the area and subsequently updated it as conditions warranted.

Ruth Wenstrom, a spokeswoman for the San Bernardino National Forest, confirmed Robin Eliason’s statement. Like Mathes, she said the Eliasons are “highly regarded employees.”

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RICO Act

Originally passed in 1970 to fight the Mafia, the Racketeer Influenced and Corrupt Organizations Act is a federal law that makes it unlawful for a group to affect interstate commerce by agreeing to commit racketeering activities.

RICO has been used since then against a variety of defendants, including drug kingpins, Wall Street workers and slumlords. Both civil and criminal cases can be brought under it.

In the course of a civil RICO case, damages are tripled and the discovery of information could lead to criminal charges.

Types of cases where the RICO Act might apply:

* Extortion.

* Blackmail.

* Certain acts of retribution against witnesses and victims who cooperated with authorities.

* Certain acts of retaliation against individuals or corporations for working with law enforcement.

* Alleged abuses of the legal system by people who sue in retaliation for having been charged in court.

* Passport, citizenship or visa fraud.

* Slavery.

Sources: Times sources; Wikipedia.org; usinfo.state.gov

Graphics reporting by Joel Greenberg