Amicus Curiae Brief — Sierra Pacific Industries, Inc., et al., Petitioners v. United States

No. 17-1153

In the

Supreme Court of the United States

________________

SIERRA PACIFIC INDUSTRIES, INC., et al.,

Petitioners,

v.

UNITED STATES,

________________

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

________________

BRIEF OF AMICI CURIAE NATIONAL

ASSOCIATION OF FOREST OWNERS,

CALIFORNIA FORESTRY ASSOCIATION,

AND WASHINGTON FOREST PROTECTION

ASSOCIATION FOR PETITIONERS

________________

John J. Bursch

BURSCH LAW PLLC

Counsel of Record

9339 Cherry Valley

Ave. SE, #78

Caledonia, MI 49316

(616) 450-4235

jbursch@burschlaw.com

Counsel for Amici Curiae

QUESTION PRESENTED

After U.S. and California authorities jointly investigated the cause of a forest fire, Petitioners entered

into a settlement agreement with the United States to

resolve a billion-dollar federal claim. At the time, Petitioners believed that investigators had engaged in

some misconduct. But during later proceedings in a

related state-court action by state authorities, Petitioners learned of additional impropriety that confirmed their worst fears: the investigatory misconduct

was so sweeping that the state-court judge terminated

the action as “corrupt and tainted” and concluded that

Petitioners could never have received a fair trial.

Petitioners moved to set aside the federal-court

settlement under Federal Rule of Civil Procedure

60(d)(3) for “fraud on the court.” After the chief district

judge attempted to recuse all judges in the district—

including Judge William Shubb—due to concerns over

the appearance of partiality, Judge Shubb elected to

hear the motion anyway, which he denied after

concluding that the Rule 60(d)(3) motion could be

supported only by evidence of fraud discovered postsettlement, and that the after-discovered evidence

alone did not warrant relief. Within hours, Judge

Shubb—already a social media “follower” of the

federal prosecutors—“tweeted” the headline and a link

to a news article falsely stating one petitioner was

“still liable.” The Ninth Circuit affirmed.

The questions presented are:

1. Whether a federal court adjudicating a motion

under Federal Rule of Civil Procedure 60(d)(3) for

“fraud on the court” may consider the totality of the

evidence of fraud, including evidence that was known

ii

at the time of judgment, or is instead strictly limited

to considering only later-discovered evidence.

2. Whether a district court judge’s impartiality

might reasonably be questioned, thereby requiring

recusal under 28 U.S.C. § 455(a), when he was originally recused from a proceeding, nonetheless elected

to preside over the proceeding, followed the prosecution on social media, and then, just hours after denying relief to the opposing party, “tweeted” the headline

and a link to a news article wrongly proclaiming that

a party is “still liable.”

iii

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

TABLE OF AUTHORITIES ...................................... iv

INTERESTS OF AMICI CURIAE ............................. 1

INTRODUCTION ....................................................... 3

BACKGROUND.......................................................... 5

SUMMARY OF ARGUMENT .................................... 9

ARGUMENT ............................................................. 10

I.

Confidence in regulatory fairness is essential

to a vibrant and efficient forest industry. ........ 10

II. Industry and the public deserve confidence

that

wildfires are investigated and

prosecuted with honesty, which the state trial

court found absent here..................................... 12

III. Because the federal settlement rests on a

foundation of what the state trial court found

was “corrupt and tainted” conduct, App. 303a,

the industry is harmed due to uncertainty

and distrust. ...................................................... 16

IV. The illegal use of the Wildland Fire

Investigation Training and Equipment Fund,

uncovered after the federal settlement,

undermines confidence in fire investigations

and prosecutions. ............................................... 19

V. This Court should grant review and

discourage two-way communications between

courts and prosecutors. ..................................... 20

CONCLUSION ......................................................... 24

iv

TABLE OF AUTHORITIES

Cases

Chambers v. NASCO, Inc.,

501 U.S. 32 (1991) .................................................. 14

County of Santa Clara v. Superior Court,

50 Cal. 4th 35 (2010).............................................. 13

Envtl. Def. Fund, Inc. v. Ruckelshaus,

439 F.2d 584 (D.C. Cir. 1971) ................................ 14

Hazel-Atlas Glass Co. v. Hartford-Empire Co.,

322 U.S. 238 (1944) ................................................ 14

Standard Oil of Cal. v. United States,

429 U.S. 17 (1976) .................................................. 14

United States v. Microsoft Corp.,

253 F.3d 34 (D.C. Cir. 2001) .................................. 22

Statutes

28 U.S.C. § 455 ........................................... ii, 3, 23, 24

Rules

Fed. R. Civ. P. 60 .............................................. passim

Sup. Ct. R. 37.2 ........................................................... 1

Sup. Ct. R. 37.4 ........................................................... 1

Sup. Ct. R. 37.6 ........................................................... 1

Other Authorities

ABA Comm. on Ethics & Prof’l

Responsibility, Formal Op. 462 (2013) ................. 21

Benjamin P. Cooper, Judges and Social

Media: “Friends” with Costs and Benefits,

22 No. 3 Prof. Law. 26, 28 (2014) .......................... 21

v

Diane M. Smith, Missoula Fire Sciences

Laboratory & Rocky Mountain Research

Station, Sustainability and Wildland Fire:

The Origins of Forest Service Wildland Fire

Research, FS-1085 (United States

Department of Agriculture, Forest Service,

May 2017)............................................................... 11

Gerard W. Williams, Ph.D., Historical

Analyst,

The USDA Forest Service—The First

Century, FS-650, at 1 (United States

Department of Agriculture, Forest Service,

April 2005) ............................................................. 10

LEARNED HAND, THE SPIRIT OF LIBERTY 132–

33 (2d ed. 1953) ...................................................... 22

Matthew Rollins, Carlos Rodriguez-Franco,

Tara Haan & Susan Conard, Research

Development Wildland Fires Fuels

Accomplishments and Outcomes, FS-1086

(United States Department of Agriculture,

Forest Service, May 2017) ............................... 11, 12

Patricia M. Wald, 61-WTR LAW & CONTEMP.

PROBS. 107 (1998) .................................................... 3

INTERESTS OF AMICI CURIAE1

The National Alliance of Forest Owners (“NAFO”)

is a national advocacy organization committed to

advancing federal policies that support the long-term

economic, social, and environmental benefits of

sustainably managed forests. NAFO member

companies own and manage more than 43 million

acres of working forests—forests managed to provide

a steady supply of timber. NAFO’s membership also

includes state and national associations representing

tens of millions of additional acres.

The California Forestry Association (“Calforests”)

is a trade association whose members are producers of

forest products, forest landowners, biomass power

plant owners who generate electricity, and natural

resource professionals committed to environmentally

sound policies, responsible forestry, and sustainable

use of natural resources. Calforests members process

over 90% of the wood products manufactured in the

State of California.

The Washington Forest Protection Association

(“WFPA”) is a trade association for private forestry in

Washington State. WFPA seeks to advance forestry

by establishing forest policies that encourage

investment in forestland, protection of fish, water, and

wildlife. WFPA represents about half of the privately

owned forestland in Washington.

1

Amici certify that they provided counsel of record for Petitioners and Respondent timely notice of their intent to file this

brief, see SUP. CT. R. 37.2(a), 37.4, and both parties consented.

Pursuant to Rule 37.6, no party or counsel to a party authored or

paid for the preparation or submission of this brief.

2

To function and have trust in the fairness of the

forestry industry market, NAFO, Calforest, and

WFPA members need confidence in state and federal

forest managers, especially those who investigate and,

if appropriate, bring enforcement actions against

these organizations’ members. The record below

demonstrates that such integrity was so lacking that

it compromised the market. The result threatens the

resources NAFO, Calforest, and WFPA members

provide that benefit American citizens.

NAFO, Calforest, and WFPA urge this Court to

review and correct the decision below, which let stand

a flawed investigation and prosecutorial fraud,

particularly given the district court’s use of social

media in a manner that confirmed the chief district

judge’s concerns about a perception of bias.

3

INTRODUCTION

Petitioner Sierra Pacific contracted to harvest

timber on a large parcel of forested land in California.

The land had a market value of approximately $110

million. After a fire of unknown origin swept across

the property, Sierra Pacific was sued for damages and

fees in excess of $1 billion for allegedly causing the

fire.

That frightening monetary disparity would be

enough to trouble any owner or harvester of forested

property. But the record is actually more alarming—

resulting in state-court findings that government

lawyers breached their duty of candor—and is

sufficient to justify a finding of fraud warranting relief

under Rule 60(b)(3). The record also reflects the

district court’s use of social-media interactions with

the prosecutors in a fashion that confirmed the chief

district judge’s concerns about the appearance of

impartiality, see 28 U.S.C. § 455. These were concerns

that caused the chief judge to declare, even before

district-court proceedings began, that no judge in the

district should handle this case.

Participants in any industry subject to investigation and enforcement actions would be rightfully

anxious when a court finds that prosecutors and

government officials acted unethically. And social

media interactions with the same prosecutors by

another court rase concern about impartiality. See

generally Patricia M. Wald, 61-WTR LAW & CONTEMP.

PROBS. 107 (1998) (describing benefits and challenges

of closeness of the bench and government lawyers, and

the possible appearances of bias and lack of

impartiality due to such closeness); see also id. at 107–

4

08 (noting that judges’ and government lawyers’ “residence in two separate branches is designed, in part, to

ensure that the courts function as the bulwark of

citizens’ liberties, standing fast against a potentially

. . . overbearing government eager to encroach on

citizens’ legal rights. Indeed, one of the distinctive

aspects of our American system of justice that

reformers seek to export abroad is the court’s independence not only from the executive and legislative

branches in general but more specifically from the

prosecutor who brings cases to the court on behalf of

the state.”).

Even giving all benefit of the doubt, it is difficult

to justify two-way communications between a presiding judge and prosecutors through social media. At a

time when politics via social media may seem

ubiquitous in our country, the social-media

interactions between judicial officers and prosecutors

here confirmed the chief judge’s pre-proceeding fear

about creating the appearance of an impartial

proceeding. And the full record damages the public’s

perception of both prosecutors and the court.

Fair investigation, enforcement, and judicial

process in cases involving the forest industry are at

the forefront of NAFO, Calforest, and WFPA’s

members’ ability to make rational market decisions

and provide Americans with valuable forest products.

Accordingly, NAFO, Calforest, and WFPA respectfully

request that the Court grant the petition and correct

the extraordinary and egregious circumstances

presented.

5

BACKGROUND

Petitioners fairly and accurately summarize the

record of this case, a case that was of note to all who

participate in the forest industry market. Pet. 5–19.

Of special importance were the actions of Mr. Joshua

White, a Cal Fire investigator who also served as a

federal expert witness. App. 4a. Mr. White’s

participation was critical, because the initial federal

investigator lacked the qualifications and authority to

investigate a fire of this magnitude. Yet, as the statecourt proceedings revealed, Mr. White had a serious

conflict of interest. As the state trial-court judge

found, “Cal Fire has, among other things, engaged in

the pervasive and systematic abuse of California’s

discovery rules in a misguided effort to prevail

against” Petitioners, and “Cal Fire’s conduct has been

egregious.” App. 190a.

White worked in tandem with USFS investigator

David Reynolds (who was later replaced by USFS

Special Agent Diane Welton), and jointly conducted

and directed the federal and state investigation. The

two agencies issued a joint “Origin and Cause Investigation Report” (“OIR”). The OIR erroneously concluded that the fire started when the front blade or

grouser plate of a bulldozer operated by an employee

of defendant Howell’s Forest Harvesting struck a rock

and issued a spark. App. 5a.

Two years later, Cal Fire filed a civil action in

California Superior Court. The same month, the

United States Attorney for the Eastern District of

California filed its own civil action, relying on much of

the same evidence and witnesses, seeking roughly $1

billion in damages for the United States.

6

The state and federal suits relied almost

exclusively on the integrity of the joint OIR. Both suits

named defendants Sierra Pacific Industries, Eunice E.

Howell d/b/a Howell’s Forest Harvesting, W.M. Beaty

and Associates, and individual defendants, including

landowners who had interests in property near where

the fire purportedly started.

Petitioners contended below, as before this Court,

that throughout the pretrial stage of the litigation, the

United States advanced a fraudulent OIR. They allege

with ample evidentiary support the following

irregularities that they contend, in their totality,

constitute fraud for purposes of Rule 60(d) review,

namely that government lawyers: (1) allowed their

experts and investigators to testify falsely; (2) misrepresented the admission of one witness, J.W. Bush, that

a bulldozer rock strike caused the fire; (3) proffered

false testimony in opposition to the motion for

summary judgment; (4) failed to take remedial action

when they learned of evidence—such as that derived

from the air attack video—that undermined its

causation theory; (5) created a false diagram

regarding the fire’s movements; and (6) misrepresented and withheld evidence and covered up misconduct of prosecutors and investigators. Pet. 5–19.

In addition, government lawyers did not disclose

a significant financial interest which constituted an

undisclosed interest in the litigation, known as the

Wildland Fire Investigation Training and Equipment

Fund

(“WiFITER”).

And

they

affirmatively

misrepresented the nature of the fund to the district

court.

7

WiFITER was an off-books fund set up by a small

group within Cal Fire, for the benefit of Cal Fire fire

investigators, to hold money recovered through

settlements with parties allegedly responsible for

reimbursing firefighting costs. Federal prosecutors

were aware of this fund during the pendency of the

federal action and never disclosed it. The state trial

court found that WiFITER created an improper

financial incentive for the government’s investigator

and disclosed expert, see Cal. Dep’t of Forestry & Fire

Protection v. Howell, (Super. Ct. of Cal. Feb. 4, 2014),

App. 189a–279a. The fund has since been found

unlawful by California’s State Auditor, and has been

dissolved. (ER 544–46, 550, 705.)2 All these

highlighted incidents are attributable to both federal

and state investigators and prosecutors who did not

disclose these facts before the federal court

settlement.

Once Petitioners were aware of the magnitude of

the undisclosed information, Petitioners filed a motion

in the federal action under Federal Rule of Civil

Procedure 60(d)(3) to vacate the previous settlement

due to fraud on the court. Petitioners’ motion relied on

the same conduct that the state trial court noted in

awarding sanctions, as well as additional instances of

prosecutorial misconduct unique to the federal action.

2

“ER” refers to the Excerpts of Record filed with the Ninth

Circuit.

8

The federal district court ordered the parties to

brief the legal sufficiency of the evidence as alleged by

Petitioners in their motion. Petitioners followed the

district court’s directive and argued the legal sufficiency of their allegations, but did not submit

evidence. The government ignored the district court’s

directive, disputed Petitioners’ allegations, and

submitted evidence attempting to disprove them.

Ignoring its previous order, the district court

relied on the evidence the government presented in its

response brief. Unlike the careful and thorough state

court judge who dismissed the case against defendants

and ordered a $32 million sanction for the same conduct at issue here, the district court ruled in favor of

the United States and denied defendants’ motion.

The Ninth Circuit’s opinion, considering instances

of fraud in piecemeal fashion rather than under a

totality-of-the-circumstances analysis, affirmed. And

while the panel found the social-media interactions

between the district court judge and the prosecutors to

present a cautionary tale to other federal officials, it

let the ruling stand, despite the appearance of

impartiality evidenced in the district court’s tweets

and the digital high-fives the court received from the

United States Attorney’s Office for the Eastern

District California.

With this background, NAFO, Calforest, and

WFPA find Petitioners’ description of the proceedings

below not only accurate, but surprisingly, restrained.

9

SUMMARY OF ARGUMENT

NAFO, Calforest, and WFPA have the highest

respect for government investigators, enforcement

lawyers, and prosecutors. As participants in the forest

industry, these associations’ members are in frequent

contact with these hard-working public servants. The

vast majority of these public officers work tirelessly,

ethically, and honestly for the public good, all too often

with little recognition. NAFO, Calforest, and WFPA

also have the utmost respect for all members of the

judiciary, who work diligently to fairly adjudicate

cases and controversies.

But as the unfortunate facts of this case show,

lawyers, investigators, and, in very rare instances,

even courts, sometimes lose their way. The rare cases

where this happens have an outsized effect on the

trust that industry participants must have to produce

products on which the American people depend. The

egregious facts in the record—particularly those that

caused the state trial court to conclude that “the

integrity of the Court and the judicial system” had

been threatened, App. 190a—tend to undermine

public confidence in our nation’s judicial system.

Because of the high reputational costs of the

transgressions that the record documents here, it is

necessary for this Court to reverse and order a return

of the settlement funds. Such action is necessary, not

only to incentivize ethical compliance, but also to

restore public trust in investigative processes, enforcement actions, and judicial decisions.

10

ARGUMENT

I.

Confidence in regulatory fairness is essential to a vibrant and efficient forest industry.

Our nation has a proud history of forest management for the greater public good. This management

“has its roots in the last quarter of the [Nineteenth]

century and was directly related to three visionary

men: Franklin B. Hough, Bernard E. Fernow, and

Gifford Pinchot[,]” who first envisioned a renewable

system of forest reserves.3 NAFO, Calforest, and

WFPA depend for their economic viability on this

resource to serve the American people and deliver a

sustainable supply of lumber for our nation’s growth

and infrastructure.

America’s trees are the ultimate natural resource.

Wood is a renewable and sustainable material that

stores carbon—as living, growing trees in the forest,

but also as lumber in our homes, wood in our kitchen

tables, and more than 5,000 paper products used by

consumers every day. The benefits of actively wellmanaged forests are critical for urban communities.

Working forests filter almost 30% of our drinking

water, provide habitat for 60% of our at-risk species,

and sequester enough carbon to offset 10-15% of our

industrial carbon emissions annually. Responsible forestry industry participants contribute to the greater

American public welfare. The federal government

recognizes this fact.

3

Gerard W. Williams, Ph.D., Historical Analyst, The USDA

Forest Service—The First Century, FS-650, at 1 (United States

Department of Agriculture, Forest Service, April 2005)

(hereinafter “First Century”).

11

As explained in a recent publication of the United

States Forest Service (“USFS”),4 “[t]he Forest Service

grew out of [a] desire to protect and sustain America’s

forests for the greatest good for the greatest number

in the long run. With this primary goal of sustainability, the new agency hired a generation of Americantrained foresters, who brought their commitment to

scientific forestry and what Samuel P. Hays has

referred to as a ‘deep sense of hope’ that motivated all

those ‘at the turn of the century for whom science and

technology were revealing visions of an abundant

future’ ***. These scientists based their optimism on

the successful practice of forestry.”5

The USFS acknowledges that regulatory fairness

is essential to the economic stability and viability of

the forest industry.6 It also recognizes that wildfires

are inevitable: “Wildfire risk to highly valued

resources, critical infrastructure, and environmental

quality generally is expected to continue to escalate as

communities continue to expand into the wildlands;

changing climate leads to increased temperature and

varying precipitation patterns; and the complexity,

4

Diane M. Smith, Missoula Fire Sciences Laboratory & Rocky

Mountain Research Station, Sustainability and Wildland Fire:

The Origins of Forest Service Wildland Fire Research, FS-1085

(United States Department of Agriculture, Forest Service, May

2017).

5

6

Id. at 3 (citation omitted).

See generally Matthew Rollins, Carlos Rodriguez-Franco,

Tara Haan & Susan Conard, Research Development Wildland

Fires Fuels Accomplishments and Outcomes, FS-1086 (United

States Department of Agriculture, Forest Service, May 2017).

12

frequency, size, and severity of wildfires increases.”7

USFS realizes that fire management is beneficial,

necessary, and also costly, as fire suppression alone

cost the Forest Service $1.7 billion in FY 2015 and in

FY 2016 the $2.38 billion appropriated for fire suppression accounted for more than 42% of the USFS

budget.8 Given such high expense, it logically follows

that fire-suppression efforts must be carried out with

efficiency and integrity. NAFO, Calforest, and WFPA

understand that with such fiscal pressures, the need

for honesty in investigation is vital to ensure those

monies are properly used. Given the high dollars

involved, the situation here is of special concern to the

forest industry, which depends on the integrity of

USFS investigation and enforcement actions by the

Department of Justice. The public interest and market

sustainability of our precious forests is why the

egregious facts of this case call for review.

II. Industry and the public deserve confidence

that

wildfires are investigated

and

prosecuted with honesty, which the state

trial court found absent here.

NAFO, Calforest, and WFPA members depend on

trustworthy investigation and enforcement actions by

prosecutors to have confidence to invest in forestryindustry activity. Carefully determining the origin

and cause of fires plays a key role in fire prevention

and the protection of lives and property.

7

Id. at 1.

8

Id. at 4.

13

Americans’ confidence in the work performed by

public servants like those employed by federal investigators, prosecutors, and their state partners Cal Fire

and the California prosecutors, also is a crucial element to successful fire prevention and protection work

of integrity. As the California trial court noted,

“[p]ublic confidence in the integrity of the investigation and prosecution of governmental claims against

its citizens must be scrupulously maintained.” App.

263a. This is particularly true when “witnesses at

issue are law enforcement officers who have access to

the scene, are charged with gathering and documenting the evidence, and are responsible for determining

who is to blame.” App. 253a. “A fair prosecution and

outcome in a proceeding brought in the name of the

public is a matter of vital concern both for defendants

and for the public, whose interests are represented by

the government and to whom a duty is owed to ensure

that the judicial process remains fair and untainted

. . . .” App. 203a–04a (quoting County of Santa Clara

v. Superior Court, 50 Cal. 4th 35, 57 (2010)).

According to the careful and detailed review provided by the California state court, the governmental

corruption and taint at the heart of the joint statefederal Moonlight Fire investigation was “so pervasive

that it would serve no purpose for the Court to recite

it all.” App. 304a. Notably for the federal proceedings,

the corruption and taint only became fully evident in

its manifold elements after settlement of the federal

case brought against Petitioners, a settlement built on

the later-uncovered corrupt and tainted investigation.

Yet the settlement remains in effect, despite fraud on

the federal courts.

14

The petition explains why this Court’s review is

necessary to resolve the conflict between the Ninth

Circuit’s decision below, and those of this Court and

decisions of other courts of appeal that do not confine

Federal Rule of Civil Procedure 60(d)(3) analysis to

fraud discovered only after the proceedings at issue.

Pet. 21–28. NAFO, Calforest, and WFPA agree that

the decision below erroneously cabins Rule 60(d)(3)

analysis such that it does not consider the totality of

the circumstances of possible fraud on the court. In

doing so, the Ninth Circuit erred, and its method

represents a split in standards from this Court and

other circuit courts of appeal.

Rule 60(d)(3) allows a judgment to be set aside “for

fraud on the court” and codifies the general principle

that federal courts always have the inherent equitable

power to vacate judgments obtained by fraud.

Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991).

Specifically, this Court, in Hazel-Atlas Glass Co. v.

Hartford-Empire Co., 322 U.S. 238, 243–44 (1944),

overruled on other grounds by Standard Oil of Cal. v.

United States, 429 U.S. 17 (1976), specified that the

fraud-on-the-court inquiry must consider the “trail of

fraud” under a totality-of-the-circumstances analysis.

Under such analysis, reversal is warranted here. See

also id. at 250; Envtl. Def. Fund, Inc. v. Ruckelshaus,

439 F.2d 584, 598 (D.C. Cir. 1971) (judicial review

should confine and control government discretion, for

“judicial review alone can correct only the most egregious abuses” and ensure that government process

itself “will confine and control the exercise of

discretion”).

15

The record of investigatory and prosecutorial facts

revealed here warrants reversal by this Court. They

constitute a breach of duty of candor to the tribunal

that under the circumstances is fraud under Rule

60(d)(3), contrary to the Ninth Circuit’s ruling, which

erroneously did not apply a totality-of-thecircumstances analysis..

As the state trial court found, the government

failed to disclose relevant exculpatory evidence and

misrepresented key facts, and the financial interest of

Mr. White tainted the government’s case. These are

serious allegations given the massive potential penalty (over $1 billion). But here they are more than just

allegations; they are actual findings by a state-court

judge in a parallel state action resulting in a $32 million sanction award against the very persons against

whom Petitioners complain here, as the prosecution

and investigation of the Moonlight Fire was a joint

federal and state endeavor.

In these unique circumstances, the district court’s

refusal to grant relief under Rule 60(d)(3) is clear

error. This Court should grant the petition, reverse

the Ninth Circuit’s decision, and remand with orders

to reverse the district court’s Rule 60 order.

16

III. Because the federal settlement rests on a

foundation of what the state trial court

found was “corrupt and tainted” conduct,

App. 303a, the industry is harmed due to

uncertainty and distrust.

Cal Fire’s conduct necessarily affected the federal

government’s case against Petitioners due to the joint

state-federal nature of the Moonlight Fire investigation and prosecution and Mr. White’s lead role in that

investigation. To be sure, the California state courts

provided some measure of justice to remedy the conduct that infected the Moonlight Fire proceedings.

Those rulings comprise a stiff rebuke to both government investigators and their counsel. But the continued existence of the federal settlement also has continuing effects which are detrimental to the rule of law in

general and the dispensation of justice in this case.

First, the continued existence of the federal settlement suggests to the public that Petitioners must have

been responsible for the Moonlight Fire. Why else

would Petitioners have settled the federal case and

agreed to pay $55 million plus transfer 22,500 acres of

valuable timberland to the federal government?

The public surely is unaware of the breathtakingly

expansive damages sought by the federal government,

which included “all damages to the National Forests

as a result of the [Moonlight] fire,” including at least

$22 million in fire suppression costs, resources

damages in excess of $118 million, $1.5 million in

emergency rehabilitation costs, unspecified tens of

millions (if not more) in interim environmental

degradation costs, prejudgment interest, and a

doubling of damages for all injuries to forest resources.

17

Nor does the public likely appreciate that when

Petitioners reluctantly entered into the federal

settlement as they faced crippling potential damages

that posed existential threats to them, they were

unaware of the full record documenting how the

Moonlight Fire investigation and prosecution

proceeded.

Second, to the extent the public does know about

the California state court’s post-federal settlement

findings of corrupt and tainted governmental conduct,

the public surely is left to wonder why the federal government got away with a settlement that was based

on the exact same conduct and had the effect of

transferring substantial assets from private parties to

federal coffers. In an era of damaging public cynicism

about our federal government and government employee conduct, the notion that Petitioners were forced

into a settlement before the full extent of the “corrupt

and tainted” Moonlight Fire investigation and

prosecution, App. 303a, was revealed fuels public

cynicism.

When such conduct leads to termination of statecourt proceedings without a similar outcome in the

parallel federal court proceedings simply because the

federal case settled before full discovery of the

corruption, public suspicion of our federal government

rightfully increases, with a concomitant decrease in

confidence in our public officials. The rule of law

should not be viewed as a game of beat the clock, but

NAFO, Calforest, and WFPA fear that continued

existence of the federal settlement produces just that

effect.

18

The California trial court’s finding that governmental actors played an active role in delaying discovery of the “corrupt and tainted” conduct in connection

with the Moonlight Fire adds additional force to the

above concerns. App. 303a. NAFO, Calforest, and

WFPA did not learn of this conduct until after the

state trial court’s February 2014 rulings.

Similarly, Petitioners only uncovered the full

extent of the evidence leading up to those rulings after

the July 2012 federal settlement, as they prepared for

trial in the combined state cases. And as the state trial

court found, the investigators and prosecutors in the

joint state-federal investigation and prosecution were

far from hapless spectators to the ongoing drama that

delayed discovery of the egregious conduct.

Because of the joint state-federal nature of the

Moonlight Fire investigation and prosecution, the federal government was not a mere bystander. NAFO,

Calforest, and WFPA’ desire to remediate the harm to

their interests and those of the public resulting from

the continued existence of the federal Moonlight

settlement causes them to support Petitioners’ request

for reversal of the district court’s decision, which

declined to set aside the federal settlement.

19

IV. The illegal use of the Wildland Fire

Investigation Training and Equipment

Fund, uncovered after the federal settlement, undermines confidence in fire

investigations and prosecutions.

For NAFO, Calforest, and WFPA, the matter of

Cal Fire’s use of the WiFITER fund, and the fact that

federal prosecutors continued to rely on Joshua White

as an expert, exemplifies the fraud upon the district

court in the federal case. NAFO, Calforest, and WFPA

wonder why Cal Fire investigators were so intent on

pursuing Petitioners. As it turned out, it had much to

do with WiFITER after lead Cal Fire investigator

Joshua White sent a letter to each of the thendefendants demanding that they pay a portion of the

costs of fire suppression and investigation into the

WiFITER fund rather than the General Fund. App.

195a n.5. But the prosecutors apparently had worked

at every turn to keep Petitioners’ counsel in the dark

about WiFITER. App. 208a–09a.

Only in October 2013—more than a year after the

federal settlement and quite by happenstance—did

Petitioners learn some of the details regarding

WiFITER due to the publication of the California

Auditor’s report 2013-107, titled “Accounts Outside

the State’s Centralized Treasury System.” See

http://www.auditor.ca.gov/pdfs/reports/2013-107.pdf.

The report prominently featured Cal Fire’s WiFITER

account and concluded it was being used “in violation

of California law.” App. 196a. Subsequently, documents that were belatedly produced by Cal Fire in the

consolidated state cases, App. 198a–200a, showed that

Cal Fire officials had been replenishing the WiFITER

20

fund at the time of the Moonlight Fire and that they

had worked to hide the fund’s true nature. The

WiFITER debacle, uncovered after the federal settlement, is a sufficient ground, standing independent of

all the other evidence, to justify review of the Rule 60

issues in this case.

V. This Court should grant review and

discourage

two-way

communications

between courts and prosecutors.

Before the Rule 60 proceedings began, the chief

judge of the United States District Court for the

Eastern District of California presciently said that no

federal judge in the district could handle the proceedings because of the court’s relationship to the local

prosecutors. Specifically, based on the “facts alleged in

the [Rule 60] Motion and accompanying Declarations

and Exhibits, the impartiality of the District and

Magistrate Judges in the Eastern District might

reasonably be questioned.” No. 2:09-cv-02445, R.603

(Order of Recusal). Unfortunately, pursuant to Ninth

Circuit policy, such an order could not issue unless the

judge originally assigned to the case would issue her

or his own recusal order, so the district-wide recusal

order was vacated. See No. 2:09-cv-02445, R. 605

(Order vacating Order of Recusal). The judge who was

reassigned the case did not recuse, and the subsequent

two-way social-media communications that took place

between that judge and the prosecutors more than

justified the chief judge’s original concerns.

21

While addressing possible pitfalls and the appearance of impropriety when a judge decides to use social

media, a recent commentator noted the obvious but

sometimes ignored danger of apparent bias or lack of

impartiality: “postings can be taken out of context[.]”

Benjamin P. Cooper, Judges and Social Media:

“Friends” with Costs and Benefits, 22 No. 3 Prof. Law.

26, 28 (2014). The danger of lost context is part of the

virtual terrain and the actual hazard of such activity.

This risk of unexpected dissemination is

heightened by the fact that social media postings are prone to be read in a misleading light.

As the ABA opinion cautions: ‘[R]elations over

the internet may be more difficult to manage

because, devoid of in-person visual or vocal

cues, messages may be taken out of context,

misinterpreted or relayed incorrectly.’ The

speaker may mean something as a joke, but in

the virtual world, the audience may not

understand the speaker’s meaning.

Id. (quoting ABA Comm. on Ethics & Prof’l

Responsibility, Formal Op. 462, at 2 (2013)).

Elaborating on the problem, the author again

notes the obvious: “Others can comment on the user’s

page.” Id. And the obvious consequence: “If the judge’s

‘friends’ make inappropriate comments on the judge’s

page, other viewers may regard the existence of those

comments on the judge’s page as the judge’s endorsement of those comments.” Id. This is precisely what

happened here, as the district court’s social-media

communications about the case received digital “highfives” from government lawyers.

22

On review, the Ninth Circuit’s analysis did not

adequately consider context or the totality of the circumstances. Consequently, the panel gave the district

court a pass. The Ninth Circuit considered this case at

best “a cautionary tale about the possible pitfalls of

judges engaging in social media activity relating to

pending cases.” App. 33. The Ninth Circuit further

reasoned that a judge following the tweets of the

prosecutors in a hotly contested live controversy

concerning fraud on the court also, in itself, did not

require recusal. App. 30a.

In a case on which the Ninth Circuit relied, a

member of this Court, then an advocate, plainly

admitted when he had no argument to defend an

extreme case of apparent bias in a case where a

district court judge’s impartiality could easily be questioned: “‘On behalf of the government, I have no brief

to defend the District Judge’s decision to discuss this

case publicly while it was pending on appeal.’” United

States v. Microsoft Corp., 253 F.3d 34, 108 (D.C. Cir.

2001) (quoting transcript). While the Ninth Circuit

used the indefensible actions of the district court in

Microsoft as the floor rather than the ceiling for its

standard regarding disqualification, App. 30a, for the

reasons described below, NAFO, Calforest, and WFPA

would merely echo this statement from 17 years ago.

Judge Learned Hand spoke of “this America of

ours where the passion for publicity is a disease, and

where swarms of foolish, tawdry moths dash with

rapture into its consuming fire. . . .” LEARNED HAND,

THE SPIRIT OF LIBERTY 132–33 (2d ed. 1953). Judges

are obligated to resist this passion, at least when

giving into it for a moment would constitute a

23

circumstance when that jurist’s “impartiality might

reasonably be questioned.” 28 U.S.C. § 455(a).

To reiterate, the district court came to this case—

to hear the Rule 60(d)(3) motion at issue—after the

chief judge had already concluded that no judge in the

district could hear the motion without an appearance

of impartiality. The district court chose to hear and

decide the motion anyway after the original judge

assigned to the case followed the chief judge’s courtwide recommendation and recused. While the case

was pending before him in the district court,

“followed” the Twitter account associated with the

United States Attorney’s Office for the Eastern

District of California, thus establishing a two-way

communication line between the court and the

prosecutors over social media.

Petitioners have correctly set forth the applicable

standards and many of the central concerns regarding

the appearance of bias and lack of impartiality that

resulted. Pet. 28–35. As participants in the industry

under investigation, NAFO, Calforest, and WFPA are

concerned that public trust and confidence in the

judicial process are seriously compromised or

destroyed by public perceptions of partiality in judicial

proceedings.

The Court should use this opportunity to clarify

and educate the judiciary, the bar, and the public

regarding the kinds of conduct that might compromise

the appearance of impartiality. And if this Court finds

that the conduct in this case even arguably comes close

to the line, it should review this case to consider what

standards apply to ascertain bias given the realities of

judicial participation in public media. The Court

24

should further delineate the proper remedy for when

a jurist’s “impartiality might reasonably be

questioned.” 28 U.S.C. § 455(a).

CONCLUSION

The Court should grant the petition for certiorari.

Respectfully submitted,

John J. Bursch

Counsel of Record

Bursch Law PLLC

9339 Cherry Valley

Ave SE, #78

Caledonia, Michigan 49316

jbursch@burschlaw.com

(616) 450-4235

MARCH 2018

Counsel for Amici Curiae