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Judge Rejects UC Request for Order Ending Tree Sit

By Richard Brenneman
Friday September 14, 2007

Superior Court Judge Richard Keller Wednesday denied UC Berkeley’s request for a court order ending the tree-sit at Memorial Stadium. 

The Alameda County Superior Court judge said he needed more evidence before ruling on the move by the university to end the protest aimed at saving an oak grove the university hopes to chop down to build a high tech gym a stone’s throw from the Hayward Fault. 

“My intent is to maintain the status quo until we can get a full hearing,” said the jurist from his bench in a Fremont courtroom. 

Keller set Oct. 1 as the date for a 2:30 p.m. full court proceeding that will include testimony from both sides. 

The university had filed papers Tuesday seeking a temporary restraining order, naming two participants in the ongoing protest that began Dec. 2 in the pre-dawn hours of Big Game day when Zachary Running Wolf scaled a redwood near the stadium wall. 

Others quickly followed up the trunks of nearby oaks. 

As days lapsed into weeks, and then months, punctuated by periodic arrests and sweeps by UC Berkeley police, the protest drew national attention. 

The suit, filed on behalf of the UC Board of Regents, seeks preliminary and permanent injunctions on the grounds that the protest is a case of illegal trespassing which violates “the regents’ policies” and “constitutes a nuisance ... that is injurious to the health and safety of members of the campus community and interferes with the comfortable enjoyment of Regental property.” 

“Someone is going to break her neck,” declared the papers filed Tuesday by Michael R. Goldstein, one of the two attorneys representing the Regents in the action. “And someone is going to start a fire ... They are living in filth and creating a health hazard.” 

A declaration by UC Berkeley Police Chief Victoria Harrison filed with the court cited 217 incidents reported by her department between the first day of the protest and Aug. 24. 

On game days, Harrison declared, she will be forced to call on police from other university campuses to augment the typical deployment of 150 security officers, public and private—and said even more would be needed if not for the fence the university erected at her request around the protest site Aug. 29.  

But Dennis Cunningham, the attorney who represented the protesters, said the only disruption came from the fence itself. 

“I don’t think it is safe to go up in the trees,” Goldstein told the court. 

“The question is, how are you going to safely remove them unless they voluntarily came down,” Keller replied. “And that’s wishful thinking the way I see it.” 

The judge said he wanted to make sure that protesters have “food, water and the substances of life going up while the case is pending.”  

Goldstein said the university would make certain that happened, but he hoped the tree sitters and their supporters would return the favor with peaceful conduct.” 

The hearing wasn’t without its moments of levity. After Cunningham told the judge “your insight is considerable,” Keller quipped, “Would you tell my wife that?” 

As for any health crisis presented by the tree-sitters, Cunningham said the university itself had created it by putting up the fence. 

But Keller declined to issue an order forcing the university to maintain supplies to the arboreal activists. 

“I grew up in a part of the country where civil disobedience brought about major changes in human experience,” said the judge, referring to his childhood in the South and specifically citing the case of Selma, Ala., where on March 7, 1965, state and local lawmen bludgeoned and tear-gassed 600 marchers on their way to Montgomery. 

“I am not unfamiliar with the concept of civil disobedience,” he said. “But at the same time, there are consequences. My intent is to maintain the status quo” until the Oct. 1 hearing. 

“It went well,” said Running Wolf after the hearing. “He did not issue the restraining order and we are very satisfied with that.” 

“We intend to get a peaceful resolution to this illegal protest,” Goldstein told reporters outside the courtroom. “Any parent will understand what we are doing.” 

While the university wouldn’t allow any camping on the ground or in the trees at the grove, “we have a long-standing tradition of honoring free speech,” said UC Berkeley Executive Director of Public Affairs Dan Mogulof. 

But, he said, “there are limits to free speech.” Just as the courts have ruled it’s illegal to yell “Fire!” in a crowded theater, so, he said, it was wrong to light cooking fires in the tops of trees at the height of fire season. 

At that point, he was interrupted by Ayr, an activist who has been supporting the tree sitters with food, supplies and moral support from the start. 

“The only reason they had fires was to cook their food after the fence went up,” he said. 

“Why not smoke them out?” asked a reporter. 

“We are not going to do anything that risks life or limb,” said Mogulof. 


Protest today 

Veterans of the Free Speech Movement and current university students will gather at the grove today (Friday) at 1:30 p.m. to speak out against the university’s actions against the tree sitters. 

Among those who are slated to appear are Michael Rossman and Michael Delacour, both veterans of the Free Speech Movement. 


Photograph by Richard Brenneman  

UC Berkeley spokesperson Dan Mogulof and attorney Michael R. Goldstein talked with reporters Wednesday afternnon after Superior Court Judge Richard Keller denied their request for an order barring protesters from occupying trees near Memorial Stadium.