Without Consent: Landowners Battle Pg&E’s ‘Moonscaping’

Dec 12, 2021 | In the News, PG&E, Wildfire

Source: Redheaded Blackbelt  |  By Sarah Reith

“PG&E almost burnt us down, and now they’re moonscaping. This is a timber harvest plan without a plan.” That’s how Mendocino County Supervisor Ted Williams described the utility’s Enhanced Vegetation Management (EVM) program last month, after community members called in to a Board of Supervisors meeting to express their alarm over PG&E’s plans to cut down dozens of second-growth redwood trees along a power line that runs through a county-owned park just outside Boonville. Residents of a number of northern California counties, including Humboldt and Mendocino, are outraged over PG&E’s tree removal on their easements through private land. Last month, Harry Vaughn, a landowner just outside Miranda, was chagrined when PG&E crews marked almost 700 trees on a property that’s been under his family’s stewardship for generations.

The Friends of Faulkner Park, a group centered near Boonville, in Mendocino County, is trying to convince PG&E to bury the powerline in the road that bisects the beloved local hangout. Williams has taken up the cause, calling a community meeting in the park with local company representatives and extracting a promise not to cut any trees there for the rest of the year. PG&E Government Liaison Alison Talbot added that the company would collaborate with the county in the new year, but was careful not to say that the work would be contingent on consent.

Redwoods are not on the list of this region’s risky trees in PG&E’s wildfire mitigation plan, but the Boonville community is trying to avoid what happened to Katharine Cole in an unincorporated area of rolling hills and oak savannah in southern Mendocino County.

In August, Cole, who lives near Hopland, said that PG&E had told her about a year and a half ago that the company would be clearing more space than usual around the lines that run through her property. She said she was told that crews would clear out brush that had been killed in the River fire, which licked the edges of her pasture; that she would get a questionnaire about what she wanted to have done with the wood; and that she would be told when contractors were coming.

The questionnaire and notice never arrived, though the crews did. “Basically, I’m looking at a war zone here,” she said, looking out over the pasture through a haze of smoke from the Dixie fire. Missing from the landscape were about two dozen oak, madrone and manzanita that crews had cleared from PG&E’s easement.

She is most upset about an 80-foot tall blue oak, another species that is not on the list of high-risk trees in PG&E’s wildfire mitigation plan.  “I had a good oak tree,” she reminisced about the day contractors came to her land; “and I came home, and I’m going to show you what’s left of it — not only they take it down, but then they strewn it all over the field.” The crews chipped up the small-diameter branches and left the chips on the ground. This makes it more difficult to reseed the pasture and diminishes the value of the land, which she leases to her neighbor, a cattle rancher. “I’m telling you, the day after it came down, that night, there were at least 16 coyotes out here, and I just was crying my eyes out, because they were mourning this tree…I mean, couldn’t they have trimmed it. Couldn’t they have done something else. And now I need to get it out of the field.”

In the wake of catastrophic wildfires, PG&E has paid out millions of dollars in settlement funds. In 2016, after convictions related to the 2010 explosion of a gas pipeline in San Bruno, the company entered a five-year criminal probation, overseen by a federal judge. At least 108 people have died in fires caused by PG&E’s grid failures, according to an order modifying the conditions of that probation. The order, written by Judge William Alsup of the Northern California United States District Court in April of 2020, specifies that “PG&E must fully comply  with the specific targets and metrics set forth in its wildfire mitigation plan, including with respect to enhanced vegetation management.”

The company’s wildfire mitigation plan and the judge’s order cite many of the same laws, especially the California Public Resource Code and General Order 95, the California Public Utilities Commission’s regulations about electric utilities. The utilities write their own wildfire mitigation plans and then submit them to the CPUC for approval. PG&E’s plan states that its EVM (Enhanced Vegetation Management) program, which is key to reducing wildfire risk, includes, “in some cases, trimming beyond 12 ft depending on tree growth rates, among other factors…PG&E has determined that in certain circumstances it is prudent to exceed” previous guidance that prescribes a four-foot clearance from power lines. And Public Resource Code 4295 gives the utility full discretion to determine the clearance, notwithstanding other sections of the code, land ownership, or permission from the landowner. This is limited to the easement, and the utility is not exempt from liability for removing vegetation outside the easement.

The policy has led to the removal of thousands of healthy trees much further than a dozen feet from power lines, often with notification that is low on details or outright confusing.

Paul Putter's homestead off of Orr Springs Road on August 7, the day crews removed more than 32 trees from his property.

Katharine Cole is not the only one who feels misled. Homesteader Paul Putter signed a contract-like document from PG&E two months before crews showed up on his property on Greenfield Ranch, just off of Orr Springs Road in Mendocino County. The document had a handwritten number 32 on a line after the words “Tree Quantity,” which led Putter to believe that 32 trees would be removed. But on a hot August afternoon, crews had already felled well over 32 trees about a hundred feet away from the power lines. They were feeding small-diameter branches into a chipper as they went along and pouring larger slash into a big red dumpster.

“I think I might have signed something without really understanding what the full implication of it was,” Putter acknowledged, over the roar of heavy equipment. “It just didn’t register, what was going to happen.”

Is it legal?

“The name of the game, if you’re a large regulated entity, is make the regulators approve your plan.” That’s according to Steve Weissman, a former CPUC administrative law judge who also created and directed the Energy Law Program at the UC Berkeley Goldman School of Public Policy. He noted that, although local governments need to perform an environmental review to change their general plans (which are how jurisdictions determine growth strategies and resource protection), the utilities’ wildfire mitigation plans are simply not subject to environmental review. He explained that the regulatory agency’s approval of its wildfire mitigation plan protects PG&E from liability. And if another state agency prevents the company from carrying out its state-approved work, that’s protection from liability, too.

“More than anything else,”said Weissman, “PG&E is concerned about liability for the next fire…if CalFire enjoins them, they can bank on that.”

Slash and debris in Rattlesnake Creek, HRSP

Most of the work is done without permits, though PG&E spokeswoman Deanna Contreras said that work in the Humboldt Redwoods State Park was done “in partnership” with the California Department of Parks and Recreation, following an internal environmental review. (Unlike a timber harvest plan, the company’s review is not subject to public scrutiny.) Contreras contended that, “Trees may appear to be healthy and still have defects that create a risk of falling into our power lines.” Activists have been in the park for months, slowing the cutting in the park by hanging out too close to the fallers for them to work safely. They believe more sophisticated management strategies are in order, and question why many healthy-seeming trees downhill of the power lines have been removed.

Contreras explained the lack of permits by asserting that, “Much of PG&E’s maintenance work, including this enhanced vegetation safety work, does not result in the type of impacts that would trigger discretionary environmental permit requirements, nor does it require utility exemptions.”

Logging is subject to the California Public Resource Code and the Forest Practice Rules, which are administered by Cal Fire. Richard Sampson, the Division Chief of the Cal Fire unit in Santa Cruz and San Mateo counties, has written eight notices of violation to PG&E and the licensed timber operators it hires to perform EVM work in his jurisdiction. He contends that the work meets the definition of a timber operation on Timberland and that, as such, the company needs to apply to his agency for permits, which it has done in the past. In October of 2020, he wrote, “Over the past 2 years, PG&E has prepared Utility Right of Way Conversion exemption permits (14 CCR 1104.1 c)) for this type of work…2 were filed in this unit prior to June 2020.” He also wrote that the company was violating numerous environmental rules, including leaving slash and debris in watercourses; failing to maintain roads during the winter operating period to control sediment; and that he had observed evidence of large tracked vehicles crossing a creek. “Unfortunately, as no permits are in place, we have no way to associate each violation to the appropriate LTO (licensed timber operator),” he wrote in a letter to PG&E managers and the three LTOs he had seen operating in the area.

PG&E contested all of it, including the definitions of the terms “timber operations” and “Timberland.” Michael Ritter, PG&E’s Senior Director of Vegetation Management Operations, wrote to Sampson in November of 2020 that the company believes Cal Fire’s interpretations of the code “are overreaching and have interfered with or substantially impeded the ability of PG&E to complete important public safety work in a timely manner.” He argued that because the land beneath the power lines is not available for growing a crop of trees, it does not meet the definition of Timberland as outlined in the code. “(C)onsequently, PG&E’s actions to maintain its existing rights of way cannot reasonably represent Timber Operations,” he concluded. He added that the company was investigating the allegations of its failures to comply with “environmental or other regulatory obligations.”

To Kellen Kaiser, the regulations look a little unevenly applied. Kaiser owns the cattle that graze on her neighbor Katharine Cole’s land in Hopland. She has been holding off tree crews with what appears to be sheer force of personality, arguing with supervisors and insisting on an explanation for every marked tree.

“I was trying to explain to them, you guys are ruining my pastures,” she recalled. “My pastures run along this corridor you are cutting. And you are cutting down the things that are, you know, spaces for my cattle to get shade, which is going to affect their water source, and then you’re just scattering wood all over where they’re going to lay down. And their answer is always like, well, that’s our policy…They always seem very surprised that I am not acquiescent about the whole situation.” It’s hard for her not to see it through the lens of gender, “because it’s just all of these men, wandering through the property, really acting in these problematic ways.”

As a rancher with a salmon-bearing stream running through her land, she hears a lot about how she’s supposed to protect the waterway. But in August, almost every tree along the creekbed was marked, including one that was providing shade to a final puddle in the drought-stricken stream. Without water in the creek, Kaiser spends hours each day, following her herd around with what she calls ‘cubes’ of water, small water tanks that fit in  the back of her pickup truck.

“If I have to do so much to protect the creek, which I think is the right thing to do,” she said, “why doesn’t PG&E have the responsibility to treat that creek with the same amount of caution? And when I asked them, so have you done environmental reviews, they said yes, but they won’t show me those reviews, they won’t connect me to the people who did the reviews, and when I said, that is what I need in order to give consent: that in order for me to be able to agree to them doing this work, I would need to speak with the environmental review people, that is when they were like, okay, delay, we’re going to do the properties on both sides of you.”

Contreras offered to send an inspector to the properties, but Cole and Kaiser were reluctant to allow PG&E personnel onto their land. Contreras apologized for any lack of communication, saying Cole should have received proper notice.

“If you add up the costs of Enhanced Vegetation Management, which is around $2 billion a year, it costs a whole lot more to cut down the trees and pay the contractors and deal with the slash and all that, than it does to rebuild the infrastructure,” said Nancy Macy, the chair of the Sierra Club’s California Utility Wildfire Prevention Taskforce, which wrote a white paper with a cost-benefit analysis of PG&E’s EVM program last year.  “It’s really expensive,” she observed. “And it doesn’t work. How can it work? You can’t cut down every tree that may or may not, sometime in the future, have a problem.” She expects the costs of EVM to hit ratepayers at an average of $10 per month.

“Unfortunately, the costs for wildfire mitigation, for the most part, are borne by ratepayers,” said Mark Toney, the Executive Director of The Utility Reform Network, a ratepayer advocacy group. Vegetation management is expensive, but he says it’s not profitable for the company, which gets a 10% rate of return on capital investments, like insulating the lines or burying them. “That’s how any utility makes its profit. It’s from the rate of return on investments in capital projects,” he explained. Vegetation management is an ongoing operating and maintenance cost, which Toney emphasized is “a straight pass-through (with) zero profit, no return.”

Still, there are financial consequences. Judge Alsup’s order lays out strict wildfire mitigation measures, including a requirement that the company make sure it can pay contractors to do the work. “To ensure that sufficient financial resources are available for this purpose,” he wrote, “PG&E may not issue any dividends until it is in compliance with all applicable vegetation management requirements as set forth above.”

And Toney said if investigators find that PG&E has caused a fire through negligence, “then the shareholders are responsible for any amount over what the insurance covers.” That means liability looms if PG&E fails to cut a tree it was supposed to cut, and that tree then falls on a line and causes a fire.

But the Sierra Club Task Force wrote that vegetation doesn’t cause nearly enough fires to warrant the amount of money being spent on management efforts. For their white paper, they delved into PG&E’s 2020 Wildfire Mitigation Plan, and found that “Information presented in PG&E’s WMP shows that tree interactions with power lines are responsible for 25% of utility ignitions…EVM will not succeed in reducing wildfire ignition because 75% of the problem…is with the antiquated infrastructure, not the trees.” The accompanying cost-benefit analysis compared PG&E’s approach to that of two other large utilities, San Diego Gas and Electric and Southern California Edison, using charts from the CPUC’s Wildfire Safety Division’s draft guidance resolution of May, 2020, and found that the other two achieved more safety for less money. Lead author Paul Norcutt asserts that in 2020, EVM alone, through August, came to $416 million. Routine Vegetation Management came out to $494 million, which means that “PG&E is spending two and a half times what was planned for 2020.” Based on PG&E’s own declaration that it had completed 1878 miles of EVM for the year, Norcutt calculated the cost of EVM at $494,000 per mile. In comparison, he calculated that SoCal Edison spent $428,000 per mile to replace bare distribution cable with steel core, triple insulated conductor, a one-time cost which reduces fire risk by 75%.

Norcutt also reported that San Diego Gas & Electric has buried 60% of its lines. On the remaining 40% of its system, the utility is installing computerized circuit breakers for protection from arcing broken cables, at a cost of about $100,000 per mile.

 Trees felled along the edge of Katharine Coles pasture

It’s unlikely that the company’s records are granular enough that anyone can say with certainty how much it’s spent, sending contractors out to Kellen Kaiser’s property in Hopland. Kaiser said she started resisting their presence last year, after crews closed gates between pastures where she wanted cows to wander freely, or left them open when she wanted them closed. Most of all, she and her neighbor Katharine Cole are sick of the debris. “We’re not making the money to mitigate this ourselves,” Cole said. “So we are stuck, dependent on them to do something to then clean up the mess.”

“That’s what I kept saying when I was arguing with them last year,” Kaiser put in. “I said, I’m not sure if you understand, but you create these messes. I am just one woman. And so, twelve guys come in here and make a mess and leave one woman to clean it up. I have a day job!”

Most ranchers do. Kaiser works as a sex educator. “[S]o I teach about consent all the time,” she said. “And it seems to me that the concept of consent is totally lost upon these people.”

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