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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

the property.

In its court brief filed on Nov. 29, Weyerhaeuser referred to the

Fioritos as a "holdover tenant" who had

drafted an "Â…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

be denied."

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

be wil

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