The city of Eureka is arguing in a federal court filing that there is no need for a judge to issue a temporary restraining order halting the city’s planned May 2 eviction of homeless people living in the PalCo Marsh, because there’s no threat that they will be irreparably harmed by being forced to relocate. Further, the city argues, if there is a threat of irreparable harm, it would be to the city if it's forced to delay the evictions, which it argues could jeopardize millions in grant funds, expose the city to liability and enable an ongoing environmental disaster.

In response to local attorney Peter Martin’s lawsuit challenging the eviction order and asking a federal judge to halt the process, which we covered here this morning, Eureka Attorney Cyndy Day-Wilson filed a nine-page response. In it, Day-Wilson argues that to grant the temporary restraining order, the court would have to find there’s a likelihood Martin’s suit would ultimately be successful, that not granting the restraining order would result in irreparable harm, and that the order would be in the public interest. Martin’s filing falls short on all fronts, Day-Wilson argues.

Day-Wilson states that pre-eviction efforts by the city and a host of others have whittled the marsh population down to 113 homeless people, which can easily be accommodated by an estimated 130 open shelter beds (a number that apparently includes the under-construction container community project near Old Town, the temporary opening of 30 cots at St. Vincent de Paul’s dining facility and the city-sanctioned night camping location in a parking lot at Koster and Washington streets). Moving people from an illegal encampment to a free and legal accommodation is not irreparable harm, Day-Wilson argues.

Further, Day-Wilson argues that the public’s interest is in seeing the PalCo Marsh cleared for the construction of a waterfront trail. Currently, she argues, there is ongoing environmental degradation with litter and human waste going directly into the bay, and the area has become “associated with drug sales and the use of narcotics, prostitution and other assorted crime.”

Finally, Wilson argues that a temporary restraining order could jeopardize a $5.3 million “public improvement project” — the waterfront trail — “funds that could be forfeited if the current situation is not resolved.”

“The simple fact is that plaintiffs do not have a right to cause significant environmental damage to a sensitive region,” Day-Wilson writes. “Their continued presence in the PalCo Marsh represents a significant threat to the health, public welfare and safety of the community.”

Further, Day-Wilson argues that a local superior court judge has also already found the city's no-camping ordinance to be constitutional.

Day-Wilson’s filing is accompanied by three sworn declarations — from Day-Wilson, Police Chief Andrew Mills and Parks and Recreation Director Miles Slattery — which offer some additional documentation to the city’s stance but also seem to include some glaring contradictions and statements that seem plainly untrue.

The starkest is a statement from Day-Wilson that, throughout her tenure as city attorney, which began in 2011, “the city has had a policy of zero tolerance for violation of the [city’s] camping ordinance.” Not only is the city currently opting to not enforce the ordinance during nighttime hours at the Koster Street parking lot, but Day-Wilson herself notes that in October of 2015 the council approved an implementation plan aimed “to provide for incremental enforcement of illegal encampments within the city of Eureka open space along Humboldt Bay.”

Wikipedia defines a “zero tolerance policy” as one that imposes automatic punishments for infractions of a stated rule and that “forbids persons in positions of authority from exercising discretion or changing punishments to fit the circumstances subjectively.” This definition stands in sharp contrast to Mills’ declaration, in which he says “EPD officers have been instructed to use judgment in enforcement and offer services as frequently as possible, taking into consideration opportunity to sleep, housing availability and needs of the individual.”

Mills also attaches to his declaration a May 2015 department order sent to his officers. Among other things, the order directs officers not to issue citations between 9 p.m. and 6 a.m., says “officers should primarily enforce locations where the city has received complaints,” and that officers should consider criminal histories, warrants, efforts made by the camper to seek shelter and documented warnings before taking enforcement actions.

This is all of note in the suit because Martin claims in his filing that Eureka has tacitly approved of homeless people camping in the PalCo Marsh for more than a decade, and that in some cases officers have even encouraged homeless people to relocate there.

In her declaration, Day-Wilson also reiterates the concern over losing grant money associated with the trail project. To that end, she states “the city has entered into contracts to begin the construction of the trail project. Delay could put the city at risk of breach of contract.”

But in his declaration, Slattery notes that the first phase of work on the project will be tearing down the old lumber kilns on Parcel 4 of the property — which account for much of the city’s massive liability concern — and states that “the bid for this work closed April 26 … and we are going to council to award the bid on May 3.” We reached out to City Manager Greg Sparks to clarify if the city has, in fact, entered into any contracts associated with the trail project. “This is the first one,” he replied, referring to the bid going before the council next week.

What’s made clear in Slattery’s declaration, however, is that the most imminent danger to the city is the risk of losing its insurance coverage if it doesn’t get those old kilns removed by “early summer.” The grant funding, Slattery states, would be at risk if the city doesn’t put subsequent phases of the trail project out to bid before August.

In closing, Day-Wilson asked that the court, if it is inclined to grant the temporary restraining order, to make it no more than 14 days.

To read the city’s full filing, as well as the declarations, check out the PDFs below.

City's Reply
Declarations