On the defensive

Ten years after he was cited on charges of diverting a creek without proper permits, a Butte County cattleman and cabinet maker is suing the Butte County district attorney for damages associated with the case. That lawsuit is currently in federal court.

Irv Leen owns a chunk of property—about 180 acres—that sits between Highway 70 and Clark Road just southwest of Butte College. He is also the vice president of the Butte County Cattlemen’s Association and serves on the board of directors of the Butte County Farm Bureau.

On Oct. 23, 2002, a warden from the state Department of Fish & Game noticed a man on a tractor who appeared to be altering a creek that ran across the property. The warden, Joe Powell, believed the man, identified as Frank Green, had also installed a culvert into an existing bootlegged dam to divert water to a newly cut 2,100-foot ditch. Powell requested that a formal complaint be filed against Green by the District Attorney’s Office for violation of a DF&G code.

A few months later Powell learned that a man named Irv Leen owned the adjacent property and was in the process of buying the land with the diverted stream via bankruptcy proceedings. Leen had made an agreement with Green to alter the waterway with a new bootlegged dam.

The following October, Deputy District Attorney Hal Thomas filed a misdemeanor complaint against both men for altering the creek, allowing waste material to enter “waters of the state,” trespassing and unlawfully obstructing free passage or use of a stream, canal or basin. Both entered pleas of no contest.

The case dragged through the courts and was heard by four different judges over the next 10 years. Aerial photos used by the prosecution in the case show a dramatic decline in vegetation from 2002 to 2005 where the stream used to run. Court documents say the 2002 modification caused “a deeper stream course and resulted in the dewatering of the historic channel of large mature willows and cottonwood trees that were removed and pushed into piles on the flood plain.”

Leen had agreed under a plea agreement in 2004 to restore the old stream. In 2007, he found an old water-rights license that he said gave him the right to divert the water and withdrew his plea. The DA argued that the water-right license belonged to an earlier owner, Earl Parker, and was from the 1960s. After five years of non-use, the DA says, the water right lapses.

That owner sold the property to music promoter Clay Gunn, who built a venue called The Field of Dreams. The concerts stopped and the land went into bankruptcy. Before altering the waterway, Green had removed tires and other debris from the old creek.

Leen could not be reached for this story. In 2010, when Butte County District Attorney Mike Ramsey was being challenged for re-election by Sacramento DUI attorney Lance Daniel, Leen posted a comment on the Chico Enterprise-Record website in reference to that paper’s endorsement of Ramsey.

Leen referred to the case against him: “That was in 2003. Fast forward past 67 times in court, 125,000 in lawyers fees and you have me going to court on 6/2/10 for arraignment (maybe).”

On March 3, 2011, the case finally came to a jury for determination. That jury, acting on the instructions of Butte County Superior Court Judge Gerald Hermansen, acquitted Leen of three charges—altering a stream without notifying the DF&G, unlawful deposit of waste into a stream, and trespassing with the intent to interfere. The fourth charge, obstructing the free passage of a stream, was dismissed. By that time Leen had hired Bay Area attorney Therese Cannata.

Ramsey chalks up the jury’s response to Hermansen’s giving less-than-adequate jury instructions, including the words “navigatable stream” to describe waterways worthy of protection.

“The jury thought we had not met our burden,” he said. “It didn’t help that we were with an unnamed stream that serves as a tributary to a waterway called the Dry Creek.”

Also named in Leen’s suit against the DA, besides Ramsey and Thomas, are Sandra Morey of the DF&G, Jenny Marr, a local biologist, and John Lane, an environmental scientist.

Cannata, Leen’s attorney, also represented local businessman George Scott, who was prosecuted by the DA in connection with the four scrap metal shops he has in Butte County. He, too, sued the DA in federal court, but the case was dismissed. Ramsey said his attorney filed a motion to dismiss the Leen case on June 26. Cannata must respond by Aug, 21. Otherwise the next hearing is set for Sept. 4.