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Judge Hands Legal Setback To Campus Tree-Sitters

By Richard Brenneman and By Riya Bhattacharjee
Tuesday October 02, 2007

Berkeley’s Memorial Stadium oak grove tree-sitters, who first took to the branches last Dec. 2 on Big Game morning, seemed at first to have suffered a legal setback on Monday afternoon when a Fremont judge issued a preliminary injunction. 

But just what the ruling means for the protesters remained in some doubt by this newspaper’s deadline.  

Alameda County Superior Court Judge Richard Keller issued a preliminary injunction that bars only tree-sitter David Galloway from occupying a perch in the grove. 

Asked what effect this may have on his clients, attorney Dennis Cunningham, who represents the tree-sitters, said “It remains to be seen. The only client of mine named [in the injunction] has decamped from the trees. He is subject to the order but not in violation of the order. All my clients have not been brought before the court, so it’s up to the university to make the next move.” 

UC Berkeley Police Capt. Mitch Celaya told the Planet following the ruling Monday that his department was not going to take any action against the tree-sitters that day. 

Galloway, 36, said that the judge had issued an injunction against him because he’d taken a propane stove up in the trees which had raised safety concerns. 

“The injunction against me says I can’t go in the trees, hang any banners or participate in any activities,” he told the Planet from outside the boundaries of the oak grove fence. 

“I have decided not to go up there because of the injunction and because of the injury in my arm,” he said. 

He added that the injury had occurred when the police had chased him up the trees when he was playing a drum inside the grove. 

“I don’t think a stove in the trees is any more dangerous than a stove in the house,” said Loretta, an on-ground support. 

“We usually send fresh food up there. The stove was used as a last resort.” 

Galloway added that the stove had been brought down from the trees a week ago. 

Judge Keller rejected extending the order to a second named defendant, Colin Schehl, because he hadn’t been legally served. The judge also declined to bar “DOES 1 through 50, inclusive”—which would have given the university blanket authority to act against unnamed individuals. 

“They still have the same authority they had before to arrest people for trespass and illegal lodging,” said Doug Buckwald, one of the many supporters of the ongoing protest. 

The judge did say he agreed with the contention of university officials that the protest poses a threat to public health and safety. 

His order barred Galloway from occupying any trees on university property or maintaining a platform, hammock, sleeping equipment, ropes or fire in the branches. 

During a Sept. 12 hearing, Keller had refused the university’s request, stating that he hadn’t heard enough evidence to convince him to grant the motion. His ruling Monday was narrow enough to give some satisfaction to protest supporters. 

But Zachary Running Wolf, the Native American who led off the tree-sit by ascending a redwood in the grove at the start of the protest, said he was afraid that the university will use the ruling to take harsh action against his fellow activists. 

“I’m afraid that they’re going after our ground support,” he said. But Buckwald said the judge’s order specifically excluded supporters. 

The trees became the center of national attention Jan. 23, the day after three venerable women ascended a ladder to stage their own symbolic tree-sit. 

It was on the 23rd that a dramatic photo of platform-perching Save the Bay co-founder Sylvia McLaughlin, Berkeley City Councilmember Betty Olds and former Mayor Shirley Dean—accounting among themselves for 245 years of political acumen—graced the news pages of the New York Times. 

The same venerable trio also appeared in Judge Keller’s court for the first day of session last month, along with Running Wolf. 

Dozens of arrests have occurred at the site, including at least two which led to the deportations of protesters who were foreign nationals. 

Meanwhile, the battle over the grove is continuing this morning, Tuesday, in another forum, the Hayward courtroom of Judge Barbara Miller, where challenges from several plaintiffs are confronting the legality of a collection of projects the university plans at and near the stadium. 

One is the four-story semi-subterranean gym and office complex the university wants to build where the grove now stands. 

The tree-sitters said they planned to be on their best behavior when Judge Miller comes to visit them on Thursday. 

“There’s definitely a kind of uneasy peace right now,” said Loretta. “It depends on the mood of the day. But I am glad the injunction wasn’t targeted against everybody. So it was a good day.”