Law Offices of STEPHAN C. VOLKER
43614 14th Street, Suite 1300 Oakland, California 94612
Tel: 510/496-0600 + Fax: 510/496-1366
December 8, 2006
Robert C. Dynes, President Office of the President University of California 1111 Franklin Street, 8th Floor Oakland, CA 94607-5200 Fax: (510) 987-9086
Victoria L. Harrison, Chief Mitch Celaya, Acting Chief University of California, Berkeley Police Department 1 Sproul Hall Berkeley, CA 94720-1199 Fax: (510) 642-6434
Robert J. Birgeneau, Chancellor University of California, Berkeley 200 California Hall Berkeley, CA 94720-7464 Fax: (510) 643-5499
Re: Request for conference to discuss terms and conditions governing the peaceful protest within the Coast Live Oak grove adjacent to California Memorial Stadium
Dear President Dynes, Chancellor Birgeneau, Chief Harrison and Assistant Chief Celaya:
I am writing on behalf of the ad hoc environmental organization Save the Oaks at the Stadium ("SOS") whose members have been engaged this past week in a peaceful protest of the Regents' decision to remove 38 rare Coast Live Oak trees adjacent to California Memorial Stadium. As you may know, several SOS members have suspended themselves at heights ranging from 30 to 70 feet above ground in these ancient oak trees for the purpose of drawing public attention to the plight of these trees.
In the time-honored tradition of the Reverend Dr. Martin Luther King and Cesar Chavez, these peaceful protesters have placed themselves where their voices would be heard by the citizens of California whose University has threatened to remove this venerable and extraordinary grove of rare Coast Live Oaks. Their ultimate purpose is to persuade the Regents to reconsider their decision and to consider alternative project sites and designs.
The protesters have made every effort to respect the legitimate interests of the University and to assure the safety of the participants in this peaceful protest. They seek only to exercise their constitutionally-protected right to engage in free speech, to peacefully assemble, and to seek judicial redress for what they view as an unlawful and ill-conceived and -designed project.
That their activities are constitutionally protected is beyond cavil. People v. Millhollen, 786 N.Y.S.2d 703 (2004) (tree sitting on University campus despite police and university orders to descend, constituted "speech" protected by the First Amendment, and did not amount to unlawful trespass); Tinker v. Des Moines Independent Community School Dist. (1969) 393 U.S. 503, 508-513 ("[e]xpressive activity [on school grounds] could... be restricted... only if the forbidden conduct. . . 'involves substantial disorder or invasion of the rights of others"); PruneYard Shopping Center v. Robins, 447 U.S. 74, 86-88 (1980) (California's Constitution affords even greater protection of free speech than does the federal Constitution); U C. Nuclear Weapons Labs Conversion Project v. Lawrence Livermore Laboratory (1984) 154 Cal.App.3d 1157, 1168-1169 (public areas of University-managed public property are appropriate for free expression activities so long as the activities do not interfere with the public uses of the property).
I am writing to request a meeting with you for the purpose of negotiating a reasonable and mutually respectful framework of terms and conditions that would govern the conduct of this peaceful protest. Our foremost concern is for the safety of the tree sitters and their volunteer ground crew. Our ultimate objective is to secure the University's agreement to stay any logging or other ground-disturbing activity until the lawfulness of this project can be properly and fully adjudicated by the California courts. Our concerns for the safety of the tree sitters and their supporters on the ground have been heightened by a recent and grave deterioration in the relationship between the University Police Department and the tree sitters that poses substantial risks to the health and safety of these peaceful protesters, as detailed in the enclosed Declaration of Doug A. Buckwald, ground crew coordinator for the demonstrators.
Please contact me at your earliest convenience to discuss these matters of urgent mutual concern. Thank you for your prompt attention to this request.
Enclosure: Declaration of Doug A. Buckwald cc: Kelly Drumm, Deputy Counsel Office of the General Counsel University of California
STEPHAN C. VOLKER (CSB #63093) JOSHUA A.H. HARRIS (CSB #226898) MARNIE E. RIDDLE (CSB #233732) LAW OFFICES OF STEPHAN C. VOLKER 436 - 14th Street, Suite 1300 Oakland, CA 94612 TEL: 510/496-0600 FAX: 510/496-1366
Attorneys for Petitioner/Plaintiff SAVE THE OAKS AT THE STADIUM
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF ALAMEDA
SAVE THE OAKS AT THE STADIUM, Petitioner/Plaintiff, V. REGENTS OF THE UNIVERSITY OF CALIFORNIA, and DOES I-XXX, Respondents/Defendants.
Civ. No. DECLARATION OF DOUG A. BUCKWALD
I, Doug A. Buckwald, hereby declare:
1. I am a member of the ad hoc environmental organization Save the Oaks at the Stadium ("SOS"), and have been a resident of Berkeley for the past 26 years. I graduated from the University of California, Berkeley in 1982, where I was a Regents Scholar. I privately tutor mathematics and English throughout the East Bay. For decades I have appreciated and enjoyed the extraordinary beauty, tranquility and ecological integrity of the grove of rare Coast Live Oaks adjacent to the California Memorial Stadium that the University threatens to cut down, and whose protection is one of the primary objects of this proceeding. I have personal knowledge of the following facts.
2. I and other members of SOS have been providing support for the peaceful protesters who are engaging in a free speech action to protect the oak woodlands west of California Memorial Stadium from destruction. The sitters in the trees are risking their lives to protest the proposed removal of this unique ancient grove of rare Coast Live Oak trees. They rely on us for communication, food, clothing, water and disposal of waste. Therefore, we are essential to their health, well being and personal safety.
3. While the news media were present on the site during the first several days of this peaceful protest on public property, neither the tree sitters nor their ground support volunteers were interrogated by the University of California Police Department. Several media crews were present on the site after Saturday, December 2, when the tree sitters first went up into the trees and before the following Tuesday, December 5, when the Regents made their final decision to go ahead and cut down the oak grove. Now that the media attention has died down, the University police department has stepped up activities that are intimidating and make the ground support people feel uncomfortable staying there at night. Since the media departed we have repeatedly been warned by the University police that we could be cited for illegal lodging and/or trespassing and/or illegal posting of signs on University property. To date they have not cited us for any of these things nor have they removed any belongings nor have they removed any signs or banners. However, they have engaged in activities that have resulted in significant discomfort and possible risk to the three tree sitters who are in our trees, Zachary Running Wolf, Jess Walsh and Aaron Diek, and to the occasional substitute sitters who sit in for Aaron Diek while he studies for and takes final examinations. When Aaron is not studying or taking final examinations, he is tree sitting.
4. The University police department is engaging in activities that pose a direct risk of harm to our tree sitters. First, police officers are shouting and shining bright lights at our tree sitters during each of their stops (which occur as often as once per hour) all night long, apparently to prevent them from sleeping. They shine bright lights up at them and shout at them and continue these disruptive actions until they get a response. These harassments pose a direct threat to the safety of our tree sitters. Sleep deprivation is a significant hazard when a person is suspended by ropes between 30-70 feet above the ground in a tree in the dark. Sleep deprivation could cause our tree sitters to accidentally stumble, tie a knot incorrectly, or fail to clip a carabiner properly to the rope for the harness. Any of these mistakes could cause a fatal fall. In addition, sleep deprivation has a number of negative health impacts such as decreasing one's resistance to illness and decreasing one's ability to withstand the effects of cold and rainy weather. For these reasons, the actions of the University police department are posing a significant threat to the health, well being and safety of all three tree sitters who are currently suspended in trees at the oak grove.
5. Second, the University police are intimidating those of us who are supporting the tree sitters in an apparent effort to coerce us into abandoning the sitters (and thus expose them to even greater risk of physical harm). They have commenced videotaping and photographing of the protesters, the ground support crew and the tree sitters. They have begun to ask for identification of all of the people who are providing support on the ground who remain there at night. They don't engage in this ID-checking activity during the day when there are other students and community members around, but at night when few people are there they claim that it's very important to do it but refuse to provide any reason why. This unrelenting intimidation all night long causes sleep deprivation on the part of our ground support team as well. Loss of sleep could cause them to make an error which could result in death or injury to one or more tree sitters or another ground helper.
6. The night of Thursday-Friday December 7-8 was a particularly bad night. I stayed on the sidewalk besides the grove all night long and did not get a single minute of sleep. I stayed awake all night because I felt that I, as the primary person responsible for the safety and security of our ground support team, needed to monitor the activities of the police. There had been such inconsistency in the behavior and demeanor of the various officers that at one point I tried to call the Watch Commander to get clarification of the police procedures regarding what constituted probable grounds for identification checks and what the police would consider to be illegal lodging or trespassing at this site. The Watch Commander sent a message back through the dispatcher that he would not return my call and I should just do whatever any officer asked. At one point last night, for example, three University police cars pulled up all together and several officers then came into the grove and shined flashlights around at everyone and checked IDs on everyone on the ground support team. The effect of this "show of force" was to intimidate the small ground crew of four people who were there last night.