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Lake Cavanaugh Trust

16004 73rd Place West

Edmonds, WA  98026

DNR Lawsuit Update

Lake Cavanaugh Trust Update     6-22-2020

It is with a sad heart that I have to tell you that the Trust has officially withdrawn its appeal of the case against Nielsen Brothers Inc.  Nielsen Brothers have logged much of Unit 1 including the critical trees on the alluvial fan.  May 15th was the day logging could begin.  Our Motion for Stay was denied by the Pollution Control Hearing Board on May 14th.  They started logging Unit 1 on June 5th and per their lawyer cut the trees on the alluvial fan and all of Unit 1.  Road construction is still going on as I write this.


The Trust’s basis of the Motion for Stay was the illegal proposed harvest of the trees on an active alluvial fan.  Nielsen Brothers and DNR stated it was “inactive”, our expert stated it was “active”.  In addition, it was pointed out that our hearing had been scheduled for April 22, 2020 but due to Covid 19 was postponed by PCHB until June 22, 2020.  The Trust had purposefully scheduled the hearing in April to be before the May 15 deadline.


In denying our Motion for Stay, PCHB stated,”…..On the technical question of the status of IAF-1(alluvial fan), it is also appropriate to give deference to DNR as the agency with specialized knowledge and expertise in this area of forest practices regulation.”  The PCHB did not take into account the main reason for the Motion for Stay----the fact that the hearing was delayed due to Covid 19 and thus past the cut date of May 15.  


The trees on the alluvial fan are cut as are most of the trees in Unit 1, the damage has been done.  Therefore, there is no reason to pursue it further with PCHB and incur more legal costs.


Our lawyers filed a Withdrawal of Appeal on June 10 with PCHB and PCHB sent an official dismissal acknowledgement on June 11th.  Case is closed on this Forest Practices Application (FPA).


It is hard to accept that we lost the battle but the Trust did make a difference.  Nielsen Brothers Inc. submitted 4 different FPAs with 6 changes in total to these FPAs all covering the same area.  Why did they do this?  Because we kept challenging what they were doing.  As a result the area that was logged, and may be logged, in Units 2 & 3 (Bob McCullough’s civil case) has been reduced.  The Trust doggedly challenged issues like setbacks for streams and surrounding marble murrelet area, and steep slopes.  


The Trust attempted to discuss purchase of the land and also tried to mediate issues with Nielsen Brothers.  They did not want to talk about a purchase nor negotiate the various proposals we presented.  They clearly wanted to log the area.


The Road A issue with Skagit County Public Works goes down as another loss.  In 1994 it was decided that the right of way could not be opened for access to the same area that Nielsen Brothers Inc. now owns.  All of our calls, emails (over 90) objecting to the opening of that right of way to Public Works did no good.  39 of you showed up on July 3, 2019 for a Commissioners meeting.  The Trust prepared a 100 page booklet for all three commissioners with your objections to the opening of the right of way and concerns about safety for you and your homes with accompanying photos.  It was pointed out what the proposed cutting on such steep slopes could do given the history of slides in this area.  Evidence of past slides and flooding in the area covering the proposed logging was presented. The commissioners listened, talked to Public Works and gave their OK.  Times are different now it seems than in 1994.  


It has been nearly two years that the Trust has been involved in this fight.  We are proud that we have been able to make a difference in what will happen within this current FPA, but frustrated by the way PCHB handled this hearing.  We know that Nielsen Brothers Inc. intends to log the entire parcel of land they purchased in 2018.  This current FPA is a small portion of that land purchase.  The Trust will continue to monitor their actions and fight any additional Forest Practice Applications they submit.


Thank you to those who contributed monetarily and all the others who gave us encouragement.  We may have lost these battles but we are not going away and will continue to fight for the preservation of the lake and the land surrounding Lake Cavanaugh.


Continue to check the Trust website for information:   www.lakecavanaughtrust.com

 

Cathy Katte, President

 

And the rest of the Lake Cavanaugh Trust team: Tracie Douglas, Kimberle Brown, Bob McCullough, and Alex McCullough



Motion for Stay

Update 5-18-2020


The Motion for Stay decision by the Pollution Control Hearing Board (PCHB) has been
made and it was not in our favor. The Trust had compelling arguments but
unfortunately the PCHB addressed the issue of the alluvial fan, stating they feel the fan
is inactive with the burden of proof on the Trust. The Trust’s expert feels it is an active
alluvial fan. PCHB stated “On the technical question of status of an inactive alluvial fan,
it is also appropriate to give deference to DNR as the agency with specialized
knowledge and expertise in this area of forest practices regulation.” This statement
coupled with the fact that they did not address the delay of the trial from April 21 to June
22 (due to covid 19) is upsetting. Had the hearing been in April, there would have been
no need for a motion for stay. This motion for stay dealt with Unit 1 only, the far western
parcel of land accessed by Road A. What does this all mean? It means timber harvest
can begin any time after May 15.


Of course, the road to access the timber needs to be built first. Skagit County Public
Works approved the use of the unopened County right-of-way on South Shore Drive
and will review the paperwork presented by Nielsen Brothers addressing four conditions
that must be met before granting the final OK to build Road A. This has been in the
works for a week and should be done and approved by early this week. Then, building
of the road can commence.


Unfortunately, results generated by a legal approach don’t always match expectations
which can frequently result in frustration of the “system”.


The Trust will proceed with the PCHB hearing on June 22. We feel our expert witness
has persuasive arguments in both his presentation and the question/answer time on the
stand, to show the alluvial fan is active and timber harvest will do potential harm to
property downslope of it. Our intention is to continue the fight to preserve and manage
the natural environment in the area surrounding our beautiful lake.




Lake Cavanaugh Trust Update 3.6.2020


The Lake Cavanaugh Trust hearing scheduled for April 21, 2020 has been changed to
June 22, 2020 due to the covid 19 pandemic. This is not good news for our case. Part
of legal negotiations stated that no logging would be done from September 30 through
May 15. Unfortunately, this means Nielsen Brothers could ask DNR to start timber
cutting after May 15, which is now before our hearing date.


The previous negotiations set the hearing for April 21, 2020 knowing that a decision
would come 2 weeks later, which would be before the May 15 possible timber cutting
start date.


Now that the trial is June 22 nd , we anticipate that Nielsen Brothers could ask for the right
to begin and finish cutting before our hearing date of June 22. If this is the case, then
the hearing would be a moot point. Our law firm asked Nielsen Brothers if they would
agree to not cut until after the decision of the hearing board. Their answer was “No”.


We are now preparing a “motion to stay” to prohibit them from logging any of the parcels
involved in the current FPA until after a decision has been reached at our June 22 nd
hearing. The Pollution Control Hearing Board (PCHB) will decide if we have a strong
enough case to justify this stay, and, if so, they set the dollar amount of the stay with
input from both parties. The Trust will then be required to post a bond, which will be
held in escrow until after the June 22 nd hearing decision has been made. This cost is an
expense we were not anticipating.


What does all this mean? Simply, that the Trust is asking you for a donation. We
realize this could not come at a worse time for many of you during these uncertain
times. The Trust has worked tirelessly since September 2018; your help is now needed
to get us to the finish line.


Please send your donation to:

    Lake Cavanaugh Trust
    16004 73 rd Place W
    Edmonds, WA 98026

Lake Cavanaugh Trust Update 3.17.2020


Trial date in Bellingham is set for April 21, 2020. The number of days is reduced to one
day due to our lawyer’s recommendation. Our case covered units 1, 2 and 3 in FPA
2817112 for a total proposed harvest of 24.7 acres. Once our experts were allowed
upon the proposed property, geological, wetlands, and biological surveys were
conducted. Upon receipt of their analysis of the areas, it was clear we did not have a
strong case with regards to geology/steep slopes, wetland issues and stream
classifications. Please note that all of these definitions are governed by Washington
State Forest Practice Application’s definitions and regulations.


Our case is now focused on unit 1, which has a proposed harvest of 3.6 acres. This is
the far west unit shown on the ‘Proposed Harvest Areas Map’ in the Map section of the
website. Access to Unit 1 is via the approved permitted abandoned road, which is
located just east of 33024 South Shore Drive.


This land belongs to Skagit County and was the access to the original logging around
the lake which ended in 1944. Skagit County Public Works approved the application
submitted by Nielsen Brothers to use this property for access to Unit 1.


The Lake Cavanaugh Trust has appealed the building of this road on DNR’s property.
The appeal is based on a wrongful use of Forest Practice Application’s rules on DNR
land. The approved Public Works request concerns only the area on Skagit County
property and does not apply to the proposed road on DNR property. Without the DNR
land the road will not access the timber parcel.

Breach of Covenant Lawsuit

May 18, 2020


Breach of Covenant Lawsuit


Bob McCullough, a Lake Cavanaugh resident at 32927 South Shore Drive, has filed a lawsuit against two
companies that propose to use a lot – 33242 South Shore Drive – in the Lake Cavanaugh subdivision #3
for ingress and egress to log portions of approximately 300 acres on Frailey Mountain.


When the original subdivisions for Lake Cavanaugh were platted back in 1948, there were restrictions
placed on the lots that prohibits commercial use of the lots. Restriction #3 of Lake Cavanaugh
Subdivision #3, where 33242 South Shore Drive is located, states: No Lots shall be used for commercial
business or manufacturing purposes.


It is believed the reason that the companies want to use the property - 33242 South Shore Drive – is that
it is more expensive to use other dedicated rights-of-ways to access the harvest areas. Environmental
restrictions make accessing their proposed harvest areas more difficult and costly which may be why
Weyerhaeuser sold the property before logging it in the first place.


A Breach of Covenant suit was filed in October 2019 to enforce the covenants that prohibit lots in Lake
Cavanaugh Subdivision No. 3 from being used for commercial business.


On Thursday, May 14, 2020, the Judge denied our Motion for Summary Judgment.  In the Judge’s words
she felt that the history of logging in the area raised a factual issue as to whether the individuals that
created the Plat of Lake Cavanaugh Subdivision No. 3 intended to excluded logging activity when it
prohibited any lot from being used for a commercial business or manufacturing purposes. But we need
to ask why would these individuals have included a Right of Way between the lots to access Frailey
Mountain if not for logging? Because of this ruling the logging company is now free to misuse one of our
lots for commercial purposes and as of this morning they have begun cutting trees and building the
logging road.


In a continued effort to preserve our property rights, a Motion for Preliminary Injunction as well as a
Motion to Reconsider will be filed as soon as possible and all efforts are being made to be prepared to
proceed to trial.


Time is off the essence and your support is needed now more than ever. A hearing on the new motions
should be on May 29 th . Please contact your County Commissioner Ken Dahlstedt as well as the other
County Commissioners – Ron Wesen and Lisa Janicki - and ask for his support in this miscarriage of
justice.


Office Hours: 8:00 a.m. - 4:30 p.m.
1800 Continental Place, Suite 100
Mount Vernon, WA 98273
Phone: (360) 416-1300
email: commissioners@co.skagit.wa.us


Lake Cavanaugh residents pay some of the highest property taxes in ALL of Skagit County and that
should provide something besides a snowplow in the winter for all our tax dollars.


To date, Bob has covered all the costs of this suit personally but has been pledged financial support from
many residents at the lake that are dedicated to protecting and preserving our property rights.
To donate to the war chest, you can send checks payable to:


Amicus Law Group PC IOLTA Account
Attn: Lake Cavanaugh
1325 Fourth Avenue, Suite 940
Seattle, WA 98101
Add Lake Cavanaugh on the Memo line on your check.


All donations will be tracked, and all unused portions will be returned pro rata to the contributor once
the case is resolved. You can email Bob at bob@southshorepartnersllc.com if you have questions and/or
want to offer or pledge your support.


This lawsuit is not affiliated with The Lake Cavanaugh Trust or The Lake Cavanaugh Improvement
Association.


Register to vote at Lake Cavanaugh so your voice will be heard in Skagit County.






March 17, 2020



Breach of Covenant Lawsuit


Bob McCullough, a Lake Cavanaugh resident at 32927 South Shore Drive, has filed a lawsuit against two
companies that propose to use a lot – 33242 South Shore Drive – in the Lake Cavanaugh subdivision #3
for ingress and egress to log portions of approximately 300 acres on Frailey Mountain.
When the original subdivisions for Lake Cavanaugh were platted back in 1948, there were restrictions
placed on the lots that prohibits commercial use of the lots. Restriction #3 of Lake Cavanaugh
Subdivision #3, where 33242 South Shore Drive is located, states: No Lots shall be used for commercial
business or manufacturing purposes.


It is believed the reason that the companies want to use the property - 33242 South Shore Drive – is that
it is more expensive to use other dedicated rights-of-ways to access the harvest areas. Environmental
restrictions make accessing their proposed harvest areas more difficult and costly which may be why
Weyerhaeuser sold the property before logging it in the first place.


A Breach of Covenant suit was filed in October 2019 to enforce the covenants that prohibit lots in Lake
Cavanaugh Subdivision No. 3 from being used for commercial business. The suit is presently pursuing
discovery to better assess how they intend to use the Property. Unfortunately, the defendants have not
provided the legally required response to the requested discovery and so now a Motion to Compel has
been filed with the court asking the court to make them follow the law. Once the discovery materials are
received, the assessment and preparation of arguments can be completed, and the suit can proceed to
the hearing. There is no date for the hearing yet as the companies have not complied and have not
provided the required materials. Once the date has been set, an update will be posted.
While it is impossible to predict how a court might rule, this is a very strong case and the courts should
uphold the covenants and prevent the use of 33242 South Shore Drive for this commercial business
operation.


To date, Bob has covered all the costs of this suit personally but has been pledged financial support from
many residents at the lake that are dedicated to protecting and preserving our property rights.


To donate to the war chest, you can send checks payable to:


        
       Amicus Law Group PC IOLTA Account
       Attn: Lake Cavanaugh
       1325 Fourth Avenue, Suite 940
       Seattle, WA 98101


Add Lake Cavanaugh on the Memo line on your check.


All donations will be tracked, and all unused portions will be returned pro rata to the contributor once
the case is resolved. You can email Bob at bob@southshorepartnersllc.com if you have questions and/or
want to offer or pledge your support.


This lawsuit is not affiliated with The Lake Cavanaugh Trust or The Lake Cavanaugh Improvement
Association.

ABOUT

CREATED IN 1994


In 1994 the Lake Cavanaugh Trust was formed by concerned lake property owners to fight the Weyerhaeuser Company plan to log its Frailey Mountain property.


The Trust was set up as a Washington nonprofit corporation.  Its purpose is the preservation and management of the natural environment in the Lake Cavanaugh water shed and surrounding lands. 


Weyerhaeuser’s intent was to clear cut the entire area, 5 parcels.  Residents banned together and with the Trust’s direction launched campaigns against logging, hired an environmental law firm and went to court to stop the logging.  It was felt that Frailey Mountain was too steep and the possibility of slides existed.  Many hours of volunteer work and costly legal fees succeeded in stopping Weyerhaeuser.  Ironically, it was stopped due to the access road being denied.  No access, no timber cutting. 


The Trust had no other issues after the Weyerhaeuser court case but continued its non-profit status until 2018 when it became inactive.  The Trust was reinstated on November 9, 2018 to lead the fight against Nielsen Brothers Logging’s applications to log Frailey Mountain. 


The land that Weyerhaeuser owned was bought by Nielsen Brothers Logging on June 6, 2018 for $655,000.  The parcels total approximately 296 acres.  The Large Block:  P67021, P66776, P18456, P18450 and the Small Block:  P18488  (view map on sales brochure).

HISTORY

Lake Cavanaugh Trust from 2018 to December 2019


September 26, 2018 Nielsen Brothers Logging filed an FPA 281660 with DNR to log 18.4 acres in the following parcel: P67021, P66954, P18456, and P66766.  Citizens have 30 days to send comments to DNR questioning/objecting to the application.  The Trust and property owners wrote letters and emails to both Skagit County and DNR objecting on the grounds that the area to be logged was too steep, prone to slides already and fearing more and greater slides as a result of the timber cutting.  Another concern was water degradation as slide debris would contaminate the lake water ruining habit and harming those that draw their drinking water from the lake. 


At this same time Nielsen Brothers applied to Skagit County to open an unopened County right-of-way.  This right of way would be access to Parcel 67021, the far west parcel in the proposed cut.


Skagit County approved the access to the right-of-way with four conditions that must be met before construction can begin on the right-of-way on January 7, 2019.  This right-of-way is owned by Skagit County and is between 33016 South Shore Drive and P66971 east of the right-of-way.  Both are back lots with P66971 with no address on the roadway.  See the letter from Skagit County Public Works for more details.


On October 19, 2018 Nielsen Brothers Logging filed FPA 2816688 to log an additional 6.5 acres on P66776 and P18456.  Different areas but within the same Parcels that were slated on FP 281660. 


Total timber cut within the two FPAs equal 24.9 acres.


FPA 2816688 was withdrawn on November 16, 2018 to resubmit with changes.


The Trust filed an appeal with DNR pointing out non adherence with DNR regulations and concern again with steep slopes, slides, water degradation, and stream crossings.


FPA 2816660 was approved on October 11, 2018 and then withdrawn on November 21, 2018.


On June 12, 2019 Nielsen Brothers Logging filed FPA 2817007, another more detailed application with DNR with a harvest of 24.7 acres.  The Trust challenged the application and it was withdrawn on July 11, 2019.


And now to the current FPA 2817112,which was filed by Nielsen Brothers Logging on July 30, 2019, same harvest area of 24.7 acres.  This is the most detailed of the preceding FPAs.  Icicle Creek Engineers redid their geological report, an updated ford crossing over streams M and L was presented along with and larger culverts for most streams.  The FPA was approved by  DNR and is now in the appeals process with the Pollution Control Hearing Board.  Court date is April 21-23, 2020.


To view any of these FPA’s go to :   https://fortress.wa.gov/dnr/protection/fparssearch/

And insert the number of the FPA


WE NEED TO STOP THE LOGGING ABOVE SOUTH SHORE ON FRAILEY MOUNTAIN!!

WHY: We all bought property at Lake Cavanaugh because we loved the pristine surrounding area, the clean lake and the refuge away from bustling, noisy cities. The proposed logging threatens both our safety and water quality. We fear that this timber cut will trigger damaging, potentially deadly, landslides. The potential for water degradation from mudslide debris is alarming, particularly for those who depend on getting their water from the lake.



WHO: The Lake Cavanaugh Trust was originally formed in 1994 to fight proposed Weyerhaeuser logging on Frailey Mountain. We won that case. Nielsen Brothers, a logging company, bought this same property from Weyerhaeuser in 2018. They have twice tried to get permission to log, but the Lake Cavanaugh Trust has succeeded in stopping them. Our Trust attorney, geologist and environmental experts are currently fighting against Nielsen’s latest appeal to log. We have a scheduled court date in April 2020, to require a State Environmental Impact Act (SEPA), see attached.

Bob McCullough, a longtime lake resident, has recently filed lawsuits seeking to reverse the Skagit County permit granted Nielsen Brothers to use residential zoned property to be used for commercial purposes, see attached for more details. The Trust and Bob McCullough have joined forces, creating a two-prong effort to stop or severely limit Nielsen Brothers attempt to log Frailey Mountain. 


WHERE:  The proposed area to be logged is above South Shore, approximately a quarter of a mile from the west end of the lake all the way to the fire station, see attached map.


WHAT do we need from you? Your generous contributions to win these legal battles.  Lawyers, geologists, wetland biologists, and other experts cost a significant amount of money. We need your support to continue the fight to save our lake!



                     THANK YOU:               Cathy Katte, President

                                                              Tracie Douglas, Secretary

                                                              Kimberle Brown, Treasurer

                                                              Bob McCullough, Director


                     PLEASE MAKE YOUR CHECK OUT TO:   LAKE CAVANAUGH TRUST


                     MAIL TO:                     Kimberle Brown, Treasurer

                                                             16004 73rd Place W

                                                             Edmonds, WA  98026      

 

CURRENT ISSUE

Forest Practice Application 2817112 History


Forest Practices Application/Notification


Skagit County approval of unopend road


MAPS

Sales brochure of Weyerhaeuser Property: Frailey Mountain timber parcels.

Cavanaugh proposed harvest units (West, Middle, and East) on Frailey Mountain

Slope stability map of Frailey Mountain with structures shown on back and lakeside lots

Streams and proposed roads in timber units on Frailey Mountain

CONTACT US