Legal update Sept 28th

The hearing did not take place this morning. Apparently there was a conflict of interest with the judge and the hearing is re-set for next Wednesday, October 3 at 9:30. As soon as I know what judge and room, that info will be posted.

From CFR - Code of Federal Regulations

Selected portions of 44 CFR Ch. I (10–1–02 Edition) [emphasis added]

§ 65.10

Mapping of areas protected by levee systems.

(a) General. For purposes of the NFIP, FEMA will only recognize in its flood hazard and risk mapping effort those levee systems that meet, and continue to meet, minimum design, operation, and maintenance standards that are consistent with the level of protection sought through the comprehensive flood plain management criteria established by §60.3 of this subchapter. Accordingly, this section describes the types of information FEMA needs to recognize, on NFIP maps, that a levee system provides protection from the base flood. This information must be supplied to FEMA by the community or other party seeking recognition of such a levee system at the time a flood risk study or restudy is conducted, when a map revision under the provisions of part 65 of this subchapter is sought based on a levee system, and upon request by the Administrator during the review of previously recognized structures. The FEMA review will be for the sole purpose of establishing appropriate risk zone determinations for NFIP maps and shall not constitute a determination by FEMA as to how a structure or system will perform in a flood event.

§ 65.11

(e) Certification requirements. Data submitted to support that a given levee system complies with the structural requirements set forth in paragraphs (b)(1) through (7) of this section must be certified by a registered professional engineer. Also, certified as-built plans of the levee must be submitted. Certifications are subject to the definition given at §65.2 of this subchapter. In lieu of these structural requirements, a Federal agency with responsibility for levee design may certify that the levee has been adequately designed and constructed to provide protection against the base flood.
[51 FR 30316, Aug. 25, 1986]

Affidavit of C.J. Zadoorian

This is the geotechnical engineer who reviewed the arborist's report which was done at the request of the Drainage District.

I edited out the case caption and some other headers and footer but he affidavit is in it's entirety.

AFFIDAVIT OF CHRISTOPHER J. ZADOORIAN


I, CHRIS J. ZADOORIAN, swear, affirm under oath that:
1. I am a resident of the State of California. I am a competent person 18 years of age or older.
2. I am a licensed professional geotechnical engineer and a graduate of the State University of New York at Buffalo with a degree in Civil Engineering and the University of Southern California with a Master’s Degree in Civil Engineering with and emphasis in Geotechnical Engineering. I am licensed to practice engineering in California and Nevada and have over 16 years of geotechnical engineering experience in California, Nevada and Oregon. Regarding the subject matter, I am working under the responsible charge of Scott V. Mills, a licensed civil and geotechnical engineer in the States of Oregon, Washington, Nevada, Utah, and Arizona with over 25 years geotechnical engineering consulting experience in Portland, Oregon.a licensed civil and geotechnical engineer in the State of Oregon. My involvement in this assignment is partially due to my general knowledge of the situation regarding woody vegetation on levees in Sacramento, California.
3. I am a Principal Engineer with GEODESIGN INC., a geotechnical and environmental engineering services firm with offices in Anaheim, California, Portland, Oregon, Vancouver and Seattle, Washington. I work from the office at 2121 Towne Centre Place - Suite 130, Anaheim, California and am the office manager and responsible Principal for this office.
4. GEODESIGN INC. has been retained by the Bridgeton Neighborhood Association to provide Geotechnical Consultation Service, including the review of an arborist report dated September 13, 2007 prepared by Mr. John O’ Shea, Consulting Arborist, regarding the condition of trees on the Bridgeton Road Levee. Mr. O’Shea’s report was prepared for the Multnomah County Drainage District.
5. In his report dated September 13, 2007, Mr. O’Shea has concluded that 120 trees should be removed immediately to meet federal standards. The letter does not establish a basis for this conclusion and generally lacks supporting documentation to validate the conclusion. A primary omission from the letter is detailed logs of excavations depicting root systems for trees identified for removal and positive confirmation that the subject tree root systems do in fact penetrate the critical section of the levee.
6. An arborist is not qualified or authorized by the Oregon Board of Engineering Examiners to perform an assessment of the structural integrity of the Bridgeton Road Levee and the effect of tree growth on this levee. These analyses must be completed by a Registered Professional Engineer licensed in the State of Oregon.
7. Oregon Revised Statutes Section 672.005 (b) defines the practice of engineering as the application of “special knowledge of the mathematical, physical and engineering sciences…for the purpose of ensuring compliance with specifications and design, in connection with any public or private utilities, structures, buildings, machines, equipment, processes, works or projects”. Persons found to practice engineering without a license are subject to civil and criminal penalties (ORS Section 672.991).
8. An evaluation of the effect of tree growth on the Bridgeton Levee requires an understanding of the equations and methods to calculate wind-throw forces, slope stability, definition of the critical section of the levee, and earthwork and grading practices. This expertise is clearly within the profession of geotechnical engineering. A licensed professional engineer must complete the engineering analyses of data regarding the levee, such as root depth and canopy size of the subject trees, and recommendations for mitigation, if required.
9. An on-going evaluation of the Army Corps of Engineers policy regarding woody vegetation appears to have resulted in a major change in the blanket policy as it applies to levees in Sacramento, California. Considerations made for Sacramento levees may be applicable to the Bridgeton levee, provided sufficient engineering evaluation is performed.
10. To date, sufficient and justifiable engineering data has not been provided that supports the plan to remove 120 trees from the Bridgeton levee. In addition, the very policy that is being referenced for the required tree removal is under intense scrutiny as there does not appear to be a justifiable basis for this policy.
11. The recent decision by the Army Corps of Engineers to evaluate further evaluate the potential impact of woody vegetation on Sacramento levees should be considered in the evaluation of the trees on the Bridgeton levee.
12. Sufficient data has not been provided to demonstrate that the 120 trees on the Bridgeton Road levee constitute an immediate threat to the stability of the levee. Further, sufficient time has not been provided to evaluate alternative mitigation measures for trees that would constitute a threat.
13. Mass removal of large growth species may result in a less favorable condition for the levee as this would likely leave a significant quantity of dead roots within the critical section of the levee and the impact on the levee and risk associated with this potential condition has not been evaluated.

Update on September 28 hearing

The hearing will take place tomorrow, September 28th at 9:30 AM in Room 410.

I will be there and will post relevant information afterwards.

Change of pace posting

Here are some photos from the Sail for the Cure - taken on June Bug
[click on photos to enlarge]

Legal update

At today's hearing, the judge left the TRO in place and the hearing scheduled for Friday will go on as originally scheduled.

Stay tuned. If you are legal junkie like I am, the convolutions in this are matter are fun to hear about....

Apparently some from Pen2 are still yelling "chicken little the sky is going to fall"... reminds me of certain people in a certain administration ......but then I am a proud cynic! and one who used to live in Washington, D.C. - home of the henny penny the sky is falling gang!

Miscommunication

So what else is new?

We arrived for the hearing that the Drainage District requested. But it seems they [or someone?] forgot to tell the docketing clerk that it was a hearing about a TRO.

The judge we met does all other expedited hearings - EXCEPT TROs!

Last I heard the hearing is now scheduled for tomorrow moringt [Tuesday Sept 25] at 9:30 AM.

In addition a permit for tree cutting that the City of Portland had issued is now revoked.

Legal matters

Legal scuttlebutt...I may be incorrect in some of the "facts" below as I got them not first hand....

After the injunction was ordered last week, the DD asked for a hearing to not only have the injunction dismissed, but they wanted the hearing now scheduled for the 28th to be expedited!

So a hearing was set for last Friday and guess what? The DD asked for it to be postponed as they were not ready!!!

So that hearing, on the dismissal of the injunction, will happen tomorrow - Monday - at 11:30 and I will be attending. Assuming the injunction stands, the hearing on the tree cutting itself will be Friday the 28th and I will attend that as well.

And a note for epicures - as the apple tree in my moorage was spared and tagged blue - I waited a few days to pick the now ripe apples and made a pie to take to a neighborhood gathering! YUM!!!!

Sail for the Cure

While all the news seems to be about the Race for the Cure, the Walk for the Cure or even the Sleep for the Cure....we rarely hear about Sail for the Cure - well maybe except in our neighborhood or other places where there are sailors.

Sail for the Cure is an annual OWSA [Oregon Woman's Sailing Association] event benefiting the Komen foundation.

Several Bridgeton residents will be out on the Columbia today on their own boats or crewing on other's boats.

This is a copy of the TRO issued on the 19th

click on the image to enlarge and read

Trees get stay of execution!

I know the headline sounds "cute" but it's how the neighborhood feels right now. The trees were on death row and a Multnomah County judge issued a TRO [temporary restraining order] pending a full hearing on September 28.. Unfortunately, the order came too late for several large trees by the Portland Yacht Club - which were cut down.

According to the neighborhood association:

A notarized affidavit by Dr. Donald Gray a Professor (Emeritus) of the University of Michigan and a noted expert in the science of the structural integrity of earthen levees examined the Bridgeton levee this week and provided the neighborhood with a affidavit indicating that the district's plan to cut the trees would be harmful to the Bridgeton levee.
A flyer with details of this development will be sent out soon.

More to be posted as the news comes in...

Press Release about the tree cutting

FOR IMMEDIATE RELEASE
September 19, 2007

CONTACT: Alise Goforth (503) 475-4853
Bridgeton Neighborhood Assoc.

Brent Foster (541) 380-1334
Columbia Riverkeeper


Levee Expert Says Planned Tree Removal on Bridgeton Levee Would Threaten Neighborhood Safety:

Neighbors Threaten Lawsuit with Tree Cutting Potentially Starting this Wednesday


Portland, OR- The Bridgeton Neighborhood Association’s (BNA) and Columbia Riverkeeper’s fight to stop the Peninsula Drainage District from cutting over 150 trees on the Bridgeton Levee took a serious turn today when a national geo-technical expert filed an affidavit saying that the removal of trees on the levee would threaten levee safety and increase the likelihood that the levee would breach. Dr. Donald H. Gray, Professor Emeritus at the University of Michigan Department of Civil & Environmental Engineering, has been in Portland this week surveying the levee and preparing a report to give to the Peninsula Drainage District on behalf of the Neighborhood Association.

The Columbia Riverkeepers and BNA filed a formal notice of negligence today with the Drainage District based on Dr. Gray’s findings and those of related studies that put the District on notice that if they cut the Bridgeton trees as proposed and there is a later breach in the levee that they will hold the District and its Supervisors legally liable for damages.

Dr. Gray plainly reported that if the trees are cut down their roots will then rot and create channels in the levee which water could pass through during a high water event. He explained that the “dying roots will eventually rot or decay and be converted from tensile reinforcements to zones of weakness or holes that will act as potential seepage conduits during high water or flood stage events.”

“This is not rocket science,” explains Matt Whitney, President of the BNA, “but the Drainage District is using outdated science, or no science at all to manage our levee. In the process they are going to put all of our lives at risk if they remove the trees on the Bridgeton Levee.”

Alise Goforth, who lives behind the Bridgeton Levee agrees. “While this started because the neighborhood did not want to lose our trees, the reality now is that the District is risking our lives and property by relying on science that is over 50 years old and clearly proven wrong by catastrophes like Hurricane Katrina. We fully intend to hold them legally accountable for their negligence”

“How can they justify cutting over 600 trees based on an outdated and flawed policy when they know that the science is definitely against them?”, commented Brent Foster, Executive Director of The Columbia Riverkeepers.

The Drainage District has already cut over 600 trees adjacent to the Bridgeton neighborhood and have marked trees for cutting and installed sediment fences in the Bridgeton neighborhood and may begin cutting in the neighborhood on Wednesday.

Trees to be cut

Today we all got a notice from Pen2 itemizing the trees on the levee and tagging them as A,B,C, or D..

The trees marked "D" and have orange ribbons are slated to be removed starting tomorrow [Wednesday the 19th].

"A" trees are not tagged and can remain
"B" trees have yellow ribbons and will be monitored during high water
"C" trees have blue ribbons and have deferred maintenance and may be removed in the future

The work sites will be surrounded by fabric to maintain safety for residents and automobiles.

Penn2 adds that peaceful demonstrations will be fully appreciated and supported but any attempt to delay the progress will result in an arrest.

Heat wave - ahhhhhhh

Well - we finally got a real week of summer - 80's and 90's and lots of sunshine...but it's mid September....oh well...





Dog has taken to the shade under my hammock - a good idea - he gets a breeze and double shade [hammock and upper deck.]




Meanwhile the cat has taken over the dog's usual outdoor bed by the front gate.

Neighbors deomonstrate for trees

Last night, prior to the general meeting about the future of the trees, many neighbors demonstrated to show support for the trees, the levee, the neighborhood and our safety.

We are Portland's smallest neighborhood - so a turn out of this size was a good sign of community support.

Many more were at the meeting in the school......where the end decision[s] was a re - re assessment of the tagged trees.

Penn2 is supposed to be going down the street today with a geotech and arborist to reassess every tagged tree. They will categorize the trees as:

A-in compliance and can stay if trimmed, etc.
B-trees to be monitored
C-trees that have root structures that are not encroaching into the critical levee section at this time but might if growth continues
D-trees that need to be cut now

See the neighbors in action :-)

Come and visit

If you like trees, water and community activism - come to Bridgeton tomorrow evening at 5:30 as we show our support for sanity, tress, and our neighborhood. This precedes the 6:00 PM meeting with the Drainage District. The demonstration will take place outside the Columbia School [Marine and Bridgeton intersections]

Mayor Potter, Commissioners Saltizman, and Cogan and the entity of North Portland neighborhoods have joined in asking for a moratorium on our tree removal while the Corps looks further into research and analysis of levees.

What is the rush here? Who exactly is making the decision?

Those are my questions. i have been a researcher and we ask to see both sides of an issue - knowing that rushing to decision making often leads to poor decisions. Federal Government agencies are not known thees days for their scientific look at anything.

So let's take a calm and reason look at trees and levees- especially the situation in Bridgeton. We not only have trees on our levee - we have housing on the town side of the levee....The trees have been here for a long time. I read about the recent meeting in Sacramento where it was noted that denuding levees of trees may make it easier for the burrowing animals to do their thing... and thereby off a worse levee situation with tree removal.

No one has yet showed me facts about what happens on Bridgeton if we keep trees. It's gotten to be a one sided - they must be removed and soon not only because I said so - but because it will soon rain and that's inconvenient.

Iraq anyone?

Tree Meeting Update

The August 30th meeting that was postponed is taking place this coming Thursday, September 6

6 P.M.
Columbia School [Bridgeton and Marine Drive]