Controversial Tree Removal Permit Denied Due to Lack of Hazard Evidence 

Attorney Tonya Farmer and permit applicant Robert Scarlett

Following the controversial removal of four old growth redwood trees from a lower Redway residential property, a fifth tree has been saved by the Humboldt County Planning Commission – for now.

A June 18 commission hearing ended with the commission unanimously voting to deny a tree removal permit to the property owner and permit applicant, Robert Scarlett.

Citing a lack of evidence that the tree is an “imminent hazard” to the house on the property, utility lines and a road right-of-way, commissioners voted to deny the permit but said an application can be re-submitted with better proof of the hazard claim.

Otherwise, they sided with scores of public speakers who traveled to Eureka from Southern Humboldt to urge the commission to spare the tree.

Scarlett became an enemy of the community when he cut down four old growth redwoods on his Oakridge Drive property early this year.

He should have sought a permit from the county to do it but instead got the go-ahead from Cal Fire, as he was directed to do by the county’s Planning Department.

It was a flub, as an initial determination that Cal Fire’s authority superseded the county’s was deemed wrong after controversy erupted.

That set the stage for the hearing that would decide the fate of the fifth tree.

The agendized staff recommendation was to approve the permit, as a Cal Fire forester and two others – one contracted by Scarlett and another certified by the International Society of Arborists (ISA) — flagged several dangers.

Senior Planner Cliff Johnson highlighted a report from the contracted forester, Hohman and Associates Forestry Consulting, which says the 252-foot-tall tree has “a significant cavity with rot present” about 200 feet up.

“The poor health of the root system” and what Johnson described as “the scar at the base of the tree” – caused by the previous tree cut – compound the tree’s definition as an “immediate hazard,” he said.

But Johnson noted that three other reports – from a registered professional forester and two ISA-certified arborists – contest the hazard claims.

Johnson said “it does not appear that these experts have been on the property to conduct the close-up examinations that the others have done that supported this application” but added, “That does not mean that their testimony is irrelevant.”

He also said the California Department of Fish and Wildlife says the tree has “ecological value” and has expressed concern about loss of marbled murrelet habitat.

To mitigate those impacts, Johnson recommended adding a condition that the trunk of the tree be donated to California State Parks to somehow be used for “beneficial cultural and habitat uses.” 

The commission’s skepticism about the hazard claims was evident early on.

Commission Chair Sarah West noted a lack of photographic evidence to support them and asked, “Is it typical that photographic evidence to support the findings that are made is not submitted with the report?”

“I don’t really know,” Johnson replied. “There’s nothing really typical about this project at all.”

Q Zone map

The Scarlett property is within a county-designated Qualifying Zone, known as a Q Zone, which sets area-specific standards and regulations.

In this case the cutting of old growth trees is prohibited unless they pose imminent danger. And Tonya Farmer, Scarlett’s attorney, cited the Cal Fire and arborist reports as proof of the imminent danger.

“Mr. Scarlett faces potential civil liability if he fails to take reasonable steps to address the hazard condition on his property and if damages result,” she said. “The question before the commission is not whether anyone values old growth redwoods, it is whether the property owner, faced with professional opinion identifying a hazardous tree, is acting reasonably in seeking permission to remove it.”

But a mass of public comment followed, assertively challenging that.

David Walsh, one of Scalett’s neighbors, noted a circumstance that has sparked a lot of suspicion – that Scarlett is a Cal Fire employee.

“The legality of the Cal Fire employee writing an exemption for another Cal Fire employee in a clearly protected area has not been resolved,” he said. “The applicant knew without a doubt that these trees were protected. The fact that the Planning Department suffered from institutional amnesia does not avoid the (Q Zone) ordinance.”

Several registered professional foresters criticized the reports supporting the hazard claims, including Patrick Mulligan.

“In my estimation, Mr. Scarlett went expert shopping to find someone who would give him his desired outcome, and they did a poor job at that,” he said. “These reports should not be trusted.”

Profit motive would be oft-claimed by the public speakers and Mulligan alleged the Cal Fire forester is “a biased co-worker of Scarlett who was involved with Scarlett before the purchase” and who “schemed” with him to “profit from harvesting the old growth.”

Amy Gustin

“The tree and the trees that were cut were priceless and are priceless but dead trees are worth a lot of money and I’d like to just remind everybody that people can be swayed by money,” said Ettersburg resident Amy Gustin.

“If you have to buy a house and the value of those trees is something that you can easily capitalize on, then the prices of those houses are going to go up,” said Redway resident Michael McKaskle. “Because there are going to be speculators who are going to be buying those with the intent of essentially abusing this process and taking those trees.” 

Another speaker said Scarlett reaped $1 million from the previous tree cuts – a claim that would be successfully disputed.

But what’s not disputed, including by the county, is that the Q Zone requirements should have been followed and were not.

“We have to strengthen the Q Zone,’ said Michael Evenson. “And the way to strengthen it from what I’m seeing and what I’m hearing is to take all monetary gain out of taking down a tree that could possibly be threatening a house or some activity.”

Ettersburg resident John Hardin said the process “has been cynically opportunistic from the beginning” and the county “has acted in complete contempt for the Southern Humboldt community.”

He added, “Those trees are so much more valuable than the house beneath them.”

Other speakers described the tree cutting as an “illegal and unethical situation,” questioned the lack of photos, and implored the commission to “look into your hearts and be on the right side of history.” 

Tom Hiller, who owns a home in the Q Zone, compared the tree takings to robbery.

Tom Hiller

“In the dead of winter, the applicant snuck into the bank when the guards at the bank were asleep,” he said. “He grabbed four big bags of cash and walked out of the bank because nobody was there to stop it. Now, in the light of springtime, the guards are awake. They know what they’re supposed to be doing and yet the applicant is asking that he be allowed to go back in the bank and grab that one last bag of cash.”

The only speaker to come anywhere close to supporting permit approval was Southern Humboldt resident Thomas Mulder, who is a former planning commissioner.

“If you do choose to deny this permit, I would double-check with county counsel that each one of you commissioners can be held liable if that tree comes down and kills someone, maims someone or maims property,” he said, advising commissioners to be “very cautious.” 

Returning to the podium, this time with Scarlett, Farmer disputed the accusations and said he’s acted responsibly.

Scarlett “followed the law to the T” and “did everything that he was told to by the government officials,” she continued. 

Farmer also said Scarlett “did not reap substantial monetary windfall” and “the total amount of money that he received for all the trees – not a million dollars — $70,000.”

The amount was said to be “closer to $80,000” during the commission’s discussion but Farmer noted “he had to pay for the services to fell the trees – so this lie must stop today.” 

Scarlett explained why he bought the property.

“I acquired this property for my mother, I acquired this property because she is aging and I live currently across the street,” he said. “I bought it for her so she could live there.” 

He added that falling limbs have “crushed vehicles” in the past and caused roof damage.

But Commissioner Noah Levy said “at most what would have been justified is to strategically remove certain limbs that could put your house at risk” and the evidence of threat is “very thin.”

The rotted cavity mentioned in one of the reports was observed by a drone and Scarlett said there’s video of it.

Asked about it, Planning Director John Ford said, “I had discussed with Mr. Scarlett some things that he could do to make those reports stronger, including the video, but none of that was done.”

Scarlett sought to remove the tree on the right with the gash at its base

Commissioner Jerome Qiriazi said Scarlett is not “necessarily at fault, per se” but Qiriazi doesn’t think there’s “sufficient evidence to justify that there’s an imminent threat.” 

Commissioner Lorna McFarlane agreed and made a motion to deny the permit “based on lack of ability to find the tree passes the test of imminent hazard.”

There was some talk of allowing limbing, but Ford said limbing isn’t prohibited by the Q Zone.

Saying “this situation is a mess,” Commissioner Iver Skavdal said he’s concerned about liability and noted that the foresters contesting the hazard claims “aren’t under contract and they’re not liable for their statements that they’re making here, so now that risk is going to shift us, to the county.”

He said he couldn’t support the permit denial but after discussion on the possibility of Scarlett re-applying with more thorough evidence, he changed his mind.

Commissioner Peggy O’Neill summed up the stakes involved in considering the removal of a 350-year-old-plus redwood.

“We’re not talking about an apple tree, we’re talking about an old-growth redwood tree,” she said. “And I think the burden of proof that it’s a danger needs to be pretty high before we agree to take it down because it’s something that’s been here long before all of us and will be here probably longer than all of us.”

The commission’s vote to deny the permit was unanimous.

Scarlett has another county process option to pursue the tree removal, as he can appeal the denial to the Board of Supervisors.