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Lawsuit between Weyerhaeuser, Homestead rescheduled
In and around the maneuvering over Cadman's proposed
Grouse Ridge operation, there continues to be a side issue that occasionally drops
off the public's radar screen, only to return later.
That issue is the future of the Homestead pit, located above Exit
38 on I-90 and abutting both the steep ridge and Weyerhaeuser property
on the top. The sand and gravel processing facility _ in existence for some
50 years now _ has been the subject of official investigation, studies and
proposals and counter-proposals, particularly since the Cadman proposal
for the ridge property came to light.
Now it is the object of a major legal wrangle between
Homestead's owners _ the Fiorito brothers _ and Weyerhaeuser, which owns 14.7
acres of the ridge top property used by the Fioritos.
From the viewpoint of Jason Fiorito, it's a classic "David
and Goliath" situation, with his small company taking on the mighty
forest-products giant. From Weyerhaeuser's point of view, however, it simply
comes down to property rights, a question of sound environmental practices, and
_ for all intents and purposes _ squatters.
The Fioritos acquired the facility in 1988 and, on April 1, 1992,
worked out a lease deal with Weyerhaeuser for use of the acreage at the top. The
initial lease term was four years, with provision for three-year extensions
if both parties were agreeable. Following amendments in September
1995, March 1996 and March 1997, the lease was extended to May 31, 1999.
Only a year ago _ after the Cadman/Weyerhaeuser Grouse
Ridge proposal came up _ Jason Fiorito offered to join the project, providing
his site as an alternative to Cadman's proposed use of a lower processing
facility near I-90 Exit 34. Following a study by engineering
analysts HartCrowser, however, Cadman and Weyerhaeuser rejected any use of
the Homestead mine.
Subsequently, on May 31, 1999, Weyerhaeuser terminated the
Fiorito's lease, because "both parties did
not agree to essential lease terms." The termination set the current legal
battle in motion with the requisite charges and countercharges.
The bottom line is Weyerhaeuser wants the Fioritos off the property,
and now. To that end, the corporation filed a writ of unlawful detainer and
requested a writ of restitution.
A writ of unlawful detainer allows landlords to evict tenants who
don't pay their rent or are otherwise in violation of their lease. It limits
the defendant's response; the recipient can provide evidence that the
landlord hasn't lived up to his part of the lease, but cannot otherwise bring into
play issues or evidence that aren't relevant to the basic lease agreement. Once
the defendant is removed, the plaintiff _ Weyerhaeuser _ can request
reimbursement for expenses and, in this case, for the cost of reclaiming
In its court brief filed on Nov. 29, Weyerhaeuser referred to the
Fioritos as a "holdover tenant" who had
drafted an " overlength motion, cites to
a voluminous record, and raises irrelevant side issues in an attempt to
raise enough smoke to obscure the only issue before the Court on this
unlawful detainer motion: whether a writ should be issued restoring
Weyerhaeuser Company to possession of its property."
On the second point, Weyerhaeuser advised the
reviewing official _ Chief Circuit Judge J. Kathleen Learned _ that her court
had no jurisdiction over anything beyond the writ. If the Fioritos wanted to
claim a breach of contract or other mitigating circumstances, they should
leave the property and pursue their claims through civil court.
In response, the Fioritos claimed there were mitigating
circumstances, including Weyerhaeuser's refusal to agree to reasonable terms as
specified in the original lease agreement and attempts to grossly increase the
security deposit for the property. Therefore, Weyerhaeuser's attempt to
gain an unlawful detainer judgement was inappropriate.
"It (Weyerhaeuser) breached that obligation when it secretly decided
to end its relationship with Fiorito brothers," stated their legal reply. "To
that end, Weyerhaeuser imposed a security amount that was three times any
prior amount ($300,000) _ unilaterally sought to drastically reduce the
excavation/reclamation plan that was originally agreed upon between the
two sides, and refused to consider in good faith a second renewal period.
The agreement allows Fiorito brothers to remain on the property to finish
reclamation, as per the original 1992 plan, and Weyerhaeuser's motion should
Much of the battle came down to arguments over reclamation of
the property, and reported environmental violations by the Homestead
site. Weyerhaeuser maintains the Fioritos have made no effort to reclaim
the property _ i.e., grade and replant _ and their operations have caused
damage to the South Fork of the Snoqualmie River. The company cited
documents from the Department of Natural Resources to back up its claim.
In response, Fiorito cited Weyerhaeuser communications
from as recently as 1997 that stated "Fiorito is operating in accordance with
the approved 1993 operating and reclamation plans" and "Fiorito is clean
on County and DNR inspections; relationships with the agencies are
excellent." As for the length of time
required for reclamation, during the 1997 lease amendment process, the Fioritos
informed Weyerhaeuser it would take more than 15 years to finish the
job. The timber company subsequently agreed to the amendment.
The Homestead operators further accused Weyerhaeuser of holding
private meetings with DNR and King County in an effort to get them
kicked off the property. According to Jason Fiorito, the corporation has even
offered to buy out the Homestead property or exchange it for other sites
near Olympia and Aberdeen. The value of the buyout, he said last
Wednesday, was about $600,000 to $700,000.
"That doesn't take into account 10 years of losses," he commented. "I
figured offering one-third of what the property is worth is not the most
equitable offer in the world."
After hearing the arguments, Judge Learned decided not to
issue Weyerhaeuser's requested Writ of Unlawful Detainer, denied the
requested Writ of Restitution and reset the proceedings for a jury trial in
September 2000. The hearing is scheduled to begin on Monday, Sept. 18, at 9
a.m. at the Court of General Jurisdiction, Superior Court of Washington
for King County. She will preside over that trial.
Not surprisingly, Jason Fiorito considers the decision a major victory.
"I feel good," he commented.
"The only reason I wouldn't feel good would be if I couldn't put forth
my arguments. This lets us remain in place until the trial. We have a limited
scope of operations in the winter months anyway.
"Weyerhaeuser maintains we haven't done anything to reclaim
the pit. They're approach is kick us out, determine what needs to be done
(to reclaim the site), do it, and send us the bill. I'm fighting over reclamation
of the property. Why kick me out over a responsibility I'm begging for,
and then bill me for it?"
Following the judge's decision, Frank Mendizabal of
Weyerhaeuser corporate communications said, "They have remained on the site
mining without a permit or a lease and we have contacted them repeatedly to
get them to start reclamation.
"It's pretty unusual for us to sue anybody," he continued, "but
we've got anything from 15 to 20 surface mining operations in Washington,
and they all have operating permits except this one. Our goal is to have all
these operating in an appropriate manner, with an appropriate lease, and
legally. This is the only one that is not. There are some issues with DNR and
the proper permits.
"It's not a good situation, obviously."
For his part, Jason Fiorito said once the issue is resolved he'd still