The American West at Risk: Science, Myths and Politics of Land Abuse and Recovery
Home | Book | Authors | Chapters | Photos | Quotes | References | Resources | Reviews | Blog

CALIFORNIA BOARD FOR PROFESSIONAL ENGINEERS, LAND SURVEYORS, AND GEOLOGISTS

COMPLAINT AND CITATION ALLEGATIONS AND RESPONSES

Data to accompany blog entry, Practicing Geology in Hazardous Lands: Coastal California by Howard Wilshire (July, 2015).

CASE CG 2010-06
ALLEGATION RESPONSE

[Subject] disregarded existing subsurface data collected by others

No such data were present or referenced any of the reports reviewed

Did not consult recent USGS maps

A reviewer is not required to research a project, but the USGS report (Open File Report 97-745E) was reviewed and is referenced in subject report (Reference 5)

Incorrect and/or misleading statements on groundwater issues

Too vague for response; original complaint requested, not provided

ADDITIONAL ALLEGATIONS OF JULY 26, 2011
ALLEGATION RESPONSE

"...a previous consultant's study (Bauer & Associates 1999; 2001) included trenching at the building site and concluded a landslide was not present. Extensive drilling logs from 2001...at locations covering area of proposed building show no evidence of an ancient 'plate slide'. A recent 100-foot trench parallel to the 'potential ancient landslide' verified prior study...and proved that Geoservices was correct in their reports. [Subject] disregarded all existing findings and subsurface investigations...and confirmed the presence of a very large landslide below the proposed building site"

To the contrary, the present geotechnical consultant of record confirmed the presence of "features consistent with a deep-seated landslide." A "recent 100-foot trench excavation" is not mentioned in any of the reports Subject obtained for review from the local Planning Department.

"...the proposed winery will use 1-2 gpm of water. A 72-hours pump test...was done in 2005. Another test, [of] surrounding wells and creeks before, during, and after main well was pumped was done in 2010. No change was observed...the static water level on the main well was 45 feet higher in 2010 than it was first drilled. [Subject] claimed that the 2005 test showed that "had 15 gpm (sic) and the test is now too old (more than 3 years). The 2010 test, which removed 8-times the water volume than a peak harvest would, 'was too quick.' Furthermore [Subject] claimed that a downhill neighbor 'irrigates its 551-acre vineyard from a tributary diversion that will affect our recharge' and a downhill neighbor is 'running out of water for its winery expansion.'"

None of these "quotations" appears in any information I have ever prepared concerning this project.

 
 
 
 
CASE CG 2010-13
ALLEGATION RESPONSE

"The complaint suggests that [Subject] submitted a letter to the PRMD entitled 'Geologic Feasibility Issues Affecting Proposed Fort Ross Vineyard Tasting Room' dated October 27, 2010. The complaint suggests that the Report contained the following misrepresentations:"

 

No geotechnical analysis had been done for the tasting rooms' proposed location

Prior to completion of Subject's report, the PRMD project file was examined by others familiar with PRMD operations. None discovered a geotechnical report in the PRMD files during the period of public review of the project. After filing his report Subject discovered a geotechnical report in the file that was not there when the two geologic reports reviewed were copied [attested to in writing by the individuals cited here]. Subject immediately notified his clients of this discovery in writing but due to budgetary constraints they were unable to authorize Subject to review this report

Misrepresentations of the Board's laws, regulations and requirements of special reports

This allegation is too vague to respond to; a copy of the original complaint was requested, not received.

Failure to understand geological conditions in Northern California

This allegation is too vague to respond to; a copy of the original complaint was requested, not received.

Opined that the groundwater availability analyses for the tasting room were groundwater availability [sic]

This allegation makes no grammatical sense, and was either improperly rendered by the enforcement analyst or badly stated by the complainant; a copy of the original complaint was requested for clarification, not received.

Identifying substantial landslides on the property at the location of the tasting room and residences when in fact there are no landslides at those locations

Subject's report includes a "Regional Landslide Setting"map that presents two categories of landslide features: those identified in CDMG Special Report 120 and "landslide features apparent on aerial photographs". Subject mapped the latter, which represent topographic anomalies generally considered indicative of landslides, observed on aerial photographs flown in 1961, 1971, 1980, 1990, and 2000. The importance of these observations, in particular those made on photographs not available to the authors of Special Report 120, was emphasized on p. 5 of Subject's report as follows: "Part of a competent site geologic investigation that should be completed to assess site stability would include examination of aerial photographs for landslide indications and thoroughly investigating all areas where apparent landslides could affect project feasibility."

Since no geologic investigation of these suspect areas was presented in reports made available for public review when Subject's work was done it is not known whether "...in fact there are no landslides at these locations" as this Complaint item alleges.

Imposing nonexistent landslides on a topographic map

In addition to identifying existing landslides, it is the task of the geotechnical consultants to identify areas of potential geologic instability where landslides may form during the life of the proposed improvements. The landslides postulated both in Special Report 120, based on aerial photo analysis, and those in Subject's report, also based on aerial photo analysis, are suspected but yet uninvestigated landslides. Until their existence is disproven, they cannot be characterized as "Nonexistent".

Statements that the property lacked certain geological [features] such as outcropping when there are obvious outcroppings present on the property [sic]

The property is fenced and posted with "No Trespassing" signs, but the site of the proposed Tasting Room is clearly visible from the fenceline. Subject's report states that there are no apparent outcrops at the construction site, not that there are none on the property, much of which is not visible from the fenceline. Because the Boudreau report presents no outcrop data, it is reasonable to infer that no outcrops were examined by Boudreau.

A road cut along Myers Grade Road, adjacent to and beyond the proposed tasting facility site, extensively exposes the bedrock that underlies the tasting facility area. The exposed bedrock differs significantly from the bedrock described by Boudreau for the adjacent proposed development site.

Wrongly identifying the Assessor's Parcel number for the subject property. The incorrect parcel number for the subject property was in fact the parcel number for another property

Incorrectly identifying the Assessor's parcel number for the subject property is surely a venal sin. In any event, Subject's report indicates the correct site address, which allows no possible misunderstanding of the site location.

Misrepresenting the data, opinions, and statements of other geologists and professionals

This complaint is too vague to allow a response; copy of original complaint requested to aid in responding; not provided.

ADDITIONAL ALLEGATIONS OF JULY 26, 2011
ALLEGATION RESPONSE

"The suggests (sic) that in [Subject's] report entitled "Geologic Feasibility Issues Affecting Proposed Fort Ross Vineyard Tasting Room... [Subject] misrepresented data and opinions of other geologists, made false statements regarding the extent and existence of site specific studies and [Subject's] review of relevant regulatory files, failed to disclose limited expertise regarding groundwater issues; misrepresented well test data; and caused financial problems due to false statements regarding the existence of landslides."

These allegations are so vague that specific responses are virtually impossible. Regulations governing filing of complaints require a degree of particularity that actual allegations can be identified. The following is the best Subject can do with these allegations:

With regard to the allegation that Subject "...misrepresented well test data", Subject did point out in his report that Sonoma County well test requirements specify a 72 hour recovery period, not the eight day recovery period reported by Boudreau. This is exactly the kind of inconsistency that a peer review is supposed to point out.

With regard to the accusation that Subject "...failed to disclose limited expertise regarding groundwater issues", most of Subject's geologic work has focused on issues of geologic stability and active fault hazards. However by education, training, experience and licensure Subject is fully qualified and licensed to perform the scope of review done for this site.

With regard to the allegation that Subject "...made false statements regarding the extent and existence of site specific studies and [his] review of relevant regulatory files" Subject refers the reader to his report dated October 29, 2010. If Subject is wrong concerning the content of the County file, then so are the County Planner, members of the public who examined the file, Mr. Boudreau (his December 2009 report makes no reference to the August 2009 report by RGH) and EBA Engineering (their July 2010 report also makes no reference to the August 2009 report by RGH). The lack of any reference to the RGH report strongly indicates that it was not in the County file during the public review period.

"The [Subject] letter contains numerous misrepresentations, including among others, the following;" "...opining that the groundwater availability analyses for the tasting room were inadequate despite his previous written lack of qualifications to opine on groundwater availability."

Geologic aspects of water availability were addressed in the two reports reviewed, and neither is a certified by a geohydrologist. Subject's report relates entirely to geologic aspects of the two reports and is well within the skill sets for which he is licensed.

E.H. Boudreau performed a reconnaissance in 2009. His "data" (the language of his report expresses little confidence in the accuracy of his data) and an extremely small scale (1"= 4 miles) regional geologic map were used by EBA Engineering in 2010 to complete the water availability assessment.

Subject's review of Boudreau's "data" points out inconsistencies and contradictions in map units and cross section. The proposed Tasting Room well appears to be shown on the Boudreau Map as in an area underlain by 'Shaley mélange' in apparent contradiction to the Cross Section, Figure 2, which shows the well site to be underlain by an isolated mass of sandstone, for which no evidence was adduced. Both the map and cross section appear to be inconsistent with "information" on the driller's log, Figure 3, that describes the entire sequence penetrated by the well as clay, shale and sandstone. Thus it appears that subsurface geologic conditions, and the ability of bedrock to provide a reliable water source, are not known with certainty to be sandstone.

CLARIFICATIONS OF ALLEGATIONS, SEPTEMBER 19, 2011
ALLEGATION RESPONSE

In your letter Dated April 6, 2010 you stated that you were not a groundwater expert, yet in your report of October 27, 2010 you go into great detail

The only report in Subject's files dated April 6, 2010 is concerning another site far removed from the Fort Ross Tasting Room site.

Review of water availability investigations by a licensed PG/CEG is not prohibited by law on any competence or ethical grounds. In fact, those are among the licenses required by the Sonoma County PRMD for preparation of such reports.

The Fort Ross Tasting Room site is located in a Zone 4 Water Availability area which is defined as "Areas with low or highly variable water yield", the least favorable water availability designation. The importance of this designation by PRMD is explained on pages 7 and 8 of Subject's report by quoting published PRMD requirements.

Investigation of water availability on the Fort Ross Tasting Room site was begun by E. H. Boudreau. Subject's review of the Boudreau report consisted only of reading the report and examining the Geologic Map and Geologic Cross Section to determine whether the characterization of geologic conditions at the site are consistent and supported by adequate data. No sophisticated geohydrologic concepts are described in the Boudreau report, and Subject's report involves only matters within the skill set for which he is licensed.

Subject found that the driller's "data" referenced by Boudreau are inconsistent with his own Geologic Map and Geologic Cross Section, and in fact the Map and Cross Section contradict each other. Subject pointed out that Boudreau repeatedly uses imprecise language in characterizing site geologic conditions, clearly indicating the lack of data available for accurate characterization of site geologic conditions. Subject observed that the Boudreau descriptions of bedrock underlying the site are inconsistent with bedrock Subject observed in a cut slope along Meyers Grade Road adjacent to the proposed construction site. Finally Subject pointed out that the PRMD mandated test procedures for investigation of water availability in a PRMD designated Zone 4 Water Availability Area were not followed. No complex geohydrologic concepts were discussed in any way in Subject's report.

This scope of review of basic geologic conditions at the site is well within matters Subject is licensed to do and in no way supports the accusation "...you go into great detail" about groundwater issues. Knowing and citing the fact that a published PRMD map indicates the site is in a Zone 4 Water Availability Area and knowing and citing published PRMD requirements concerning water availability investigations in Zone 4 Water Availability Areas is minimal detail, not "great detail" as stated in the complaint item.

Subject's findings concerning the EBA use of the, in Subject's professional opinion, questionable. Boudreau's conclusions and an extremely small scale (1"=4 miles), very outdated regional geologic map to characterize site geologic conditions are also well within Subject's skill set and professional licenses. In fact on page 13 of Subject's report it is pointed out that EBA, express their own misgivings concerning the Boudreau conclusions as follows: "Both of the above assessments are based on the premise (emphasis added) that there is hydraulic communication between the sandstone aquifer and the water bearing units that supply the spring box and other off-site water supply wells. However, as eluded (sic) to earlier in Subsection 3.1, it is entirely possible (emphasis added) that the disparate rock properties between the sandstone aquifer and the surrounding shaley mélange inhibits any communication, which would negate the potential for off well/spring interference".

The uncertainty expressed by EBA bears on the critically important geologic concept of continuity or discontinuity of a subsurface geologic unit, in this case the assumed sandstone aquifer that is not even shown on the Boudreau Geologic Map. Whether or not a geologic unit, is even present, let alone continuous or discontinuous, is basic geology, not sophisticated geohydrology. This subject matter is well within Subject's skill set and licensed practice.

Also you created a geologic landslides hazard map showing landslides on the property without performing any subsurface investigation work at or near the site or even walking the site. Your description of Figure 1 shows apparent landslides, yet they are not dashed or shown with question marks, which is typically done when there are questions to the validity of the geologic feature. There appears to be no basis for this map.

In Subject's 42 year career in Engineering Geology no case has ever arisen to the best of the Subject's knowledge of a reviewer independently performing subsurface investigation on somebody else's client's property, and such work was not within the scope of the Subject's review.

The site is fenced and "No Trespassing" signs that must be respected are prominently posted along the fence line. Subject did not violate the property owner's right to prohibit trespass, but rather examined closely excellent roadcut exposures of bedrock adjacent to the proposed building site, which itself was clearly visible from the fence line.

Information obtained from examination of aerial photographs was used to plot on the subject map (Figure 1 of Subject's report) areas in which features generally considered to be suggestive of landslides Subject observed on aerial photographs (stereo pairs flown in 1961, 1971, 1980, 1990, and 2000). Subject's report clearly explains that Figure 1 is not a presentation of landslides known to exist in the site vicinity, but depicts areas where, in the Subject's professional opinion, instability is suspected and additional geologic investigation is indicated. These areas were plotted on the Special Report 120 map of potential landslides and distinguished from those by a different color as explained—the color defines the uncertainty as well as dashed or question-marked lines. The complainant apparently did not read the report that goes with the map.

Page 5 of Subject's report clearly states what the areas Subject mapped represent and Subject's opinion of what should be done to determine their significance to the Fort Ross project as follows: "Topographic anomalies generally considered indicative of landslides observed on the aerial photos (Reference 4) [Subject] examined are also shown on Figure 1. Part of a competent site geologic investigation that should be completed to assess site stability would include examination of aerial photographs for landslide indications and thoroughly investigating all areas where apparent landslides could affect project feasibility."

Why did you state that there was no geologic or geotechnical report prepared for the project, when in fact it was in the PRMD library for the site?

Whether or not there was a geotechnical report at PRMD, available to the public during the public review period, has been addressed repeatedly in Subject's reports dated October 27, 2010 and 0ctober 29, 2010 and in Subject's first and second responses to the complaints against him. Conclusive written documentation concerning this matter, including the list of technical reports used by the PRMD planner obtained from the PRMD project file (Exhibit 5 in Subject's first complaint response dated July 12, 2011) and written statements by members of the public who examined the file over a period of many months (Exhibit 6 in Subject's first complaint response dated July 12, 2011). This should be more than adequate to prove that the document in question was not made available for public review during the public review period. It is impossible to conclude that Subject is wrong on this without concluding that the PRMD planner, Mr. Boudreau, EBA Engineering and several members of the public who examined the file are also wrong.

Furthermore, this issue is completely irrelevant to Subject's ethics and skill as a geologist. Subject's clients stated to the Subject that they had extensively reviewed the file and found two geologic reports that they had copied for Subject's review. On this basis, they instructed Subject not to further review the file. Subject reviewed all the reports that were provided by his clients who had combed through the PRMD file. Subject asked the PRMD planner (Cynthia Demidovich) why she did not require a geologic and geotechnical investigation of slope stability (none is referenced in the Mitigated Negative Declaration under review) and her answer was there are no geologic hazards in the site vicinity [telephone conversation].

You state that there are apparently no outcrops on the property without even going to the site.

Page 2 of Subject's report dated October 27, 2010, under scope of review, the first item states "1. Geologic reconnaissance of the site vicinity on October 26, 2010 to observe exposed topographic and geologic features".

This is a very large property and the proposed project is on a part of the property adjacent to Meyers Grade Road. Subject did not state "... that there are apparently no outcrops on the property". What is actually stated on page 10 of Subject's report dated October 27, 2010 is "My site reconnaissance noted that outcrops apparently do not exist at the proposed construction site" (emphasis added), which as Subject previously stated is clearly visible from Meyers Grade Road. This accusation cannot have been made by anyone who actually read or understood Subject's report.

CITATION DESCRIPTION OF VIOLATION
VIOLATION COMMENT

"[Subject] conducted a review of the proposed Fort Ross Vineyard Tasting Room located at 15001 Myers Grade Road, Jenner, California on October 26, 2010 and prepared a report entitled "Geologic Feasibility Issues Affecting Proposed Fort Ross Vineyard Tasting Room, 15001 Meyers Grade Road, Jenner, Sonoma County, California APN 120-050-013," dated October 27, 2010. Portions of the report, as submitted, were a misrepresentation of the contents of the materials filed for the project and had no basis in fact (i.e., existence and relevance of the RGH geotechnical report and its contents)."

Subject discovered the RGH geotechnical report in question in the PRMD file at the time his report was submitted. The RGH report was not present in the County file previously when numerous members of Subject's client group combed through the file repeatedly. Subject reported that discovery immediately to his clients. They directed Subject to send them a supplemental letter documenting that discovery but to do no further work because the public comment period was over and they had no more funds for further work. The requested letter was immediately submitted to Subject's clients documenting discovery of the RGH report. That letter dated 10-29-10 does modify Subject's 10-27-10 report indicating that Subject's clients' thorough, repeated file research did not discover a geotechnical report. This matter is discussed in detail in the Jay Smith review of these events. An email from Subject's clients to Subject on 6-25-11 documents their extensive file research that did not find the report in question.

[Subject]...prepared a regional landslide setting map that shows large scale landslides that he drew across the subject property while the actual California Division Mines and Geology [sic] Special Report 120 map does not show any potential landslides in the area.

This allegation is technically incorrect. In Subject's Informal Conference Subject displayed the map representing a portion of Special Report 120 on which Subject had plotted his own observations of areas that showed indications of landsliding that needed further investigation. I told the Board representatives present at the Informal Conference that the map does indicate abundant landslides in the area. The Board's independent technical expert, Chuck Kull, was directly asked if he agreed that the map does indicate abundant landslides in the area and he answered "yes". This is on the audio recording of the "Informal Conference".

[Subject] claimed that he had performed a site reconnaissance even though he never was on the site.

This is an allegation transformed into a supposedly factual accusation. This allegation was stated in item 4 and intimated in item 2, under CLARIFICATIONS OF ALLEGATIONS, SEPTEMBER 19, 2011 and responded to there.

In addition written testimony provided by two licensed geologists confirm that Subject's descriptions of the road cut bedrock exposures adjacent to the proposed building site could not have been made without on-site investigation.

[Subject] claimed there was no apparent out crop in the vicinity of the proposed building; however, there are reports that document outcropping at the site.

Subject stated there were apparently no outcrops at the proposed construction site, which was quite visible at the fence line, not that there were no apparent out crops in the vicinity of the proposed building. The distinction is that my statement is precise whereas the allegation is not.

[Subject] stated in his October 27, 2010 report that "it appears significant grading would be required for the project; however he states that he did not review the grading plan."

During his 42 year career Subject was called on frequently for such estimates, as are many experienced engineering geologists. In Sonoma County, codes require that any earthmoving in excess of 50 cubic yards requires a grading plan and a grading permit. The description of the project makes it crystal clear that the proposed grading will greatly exceed the 50 cubic yard threshold. Any grading that requires a grading plan and a grading permit is "significant".

[Subject] has prepared at least two reports concerning projects in Sonoma County. In one [the subject of case CG 2010-06] he stated on pages 11 and 12 that "My review report does not address the issue of water availability because that is not my area of expertise." On page 2 he further noted "A review of water availability issues affecting the proposed project is not within the scope of my services..." [Subject] violated Title 16, CCR sections 3065(b)(1), (c)(1) when he, approximately 6 months later, with apparently no change in professional qualifications, reviewed and critically evaluated water availability reports for the subject Fort Ross Vineyard Tasting Room.

Response provided under CLARIFICATIONS OF ALLEGATIONS, SEPTEMBER 19, 20112, first allegation

 
 
 
 
CASE CG 2010-20
ALLEGATION RESPONSE

"...as part of [Subject's] application to build a home on [Subject's] property, [Subject] performed [Subject's] own percolation testing summarized in letter of April 29, 1999, which was subsequently submitted to the Sonoma County Permit and Resource Management Department (PRMD)"

No regulation prohibits me from doing my own percolation testing. A PRMD Civil Engineer confirmed Subject's qualifications to do the testing, and the PRMD Environmental Health Specialist personally observed the field testing. Subject's application to perform the testing identified the property owner as the licensed geologist doing the testing

"You commissioned 'Brian A. Robinson & Associates, Inc.' to produce a geotechnical investigation of the site [which was prepared and submitted] August 12, 1999. The complaint further suggests that [Subject] performed the geologic mapping and subsurface exploration for the geotechnical investigation; however, [Subject's] signature or license stamp was not included on the signature page of the report."

The types of work Subject performed and reported in the geotechnical report do not require my signature on the report. The BPC (Business and Professions Code) requires that a geotechnical report be signed by its preparer, as was done

"Both the percolation test letter and the geotechnical report indicate that the site is suitable for residential development and that slopes are stable. The complaint suggests that the site is located within the boundaries of a large landslide as shown on published Slope Stability Map 2A, CDMG Special Report 120: Geology for Planning in Sonoma County (1980), which is the premier standard for geologic reference for any work in Sonoma County."

The Subject took note of an anomaly suggestive of landsliding at purchase of the property in 1968, long before Special Report 120 was published. The maps of that report are 1"=1 mile, and the CDMG authors emphasize they are unsuitable for site-specific evaluation. The report states: "...use of the data for detailed planning at parcels larger than these maps will lead to distortions and misrepresentations of fact," and "Determination of the suitability of a particular building site requires detailed investigation of the specific site and the uses under consideration." Between 1968 and the date of house construction, Subject closely examined the site and surrounding areas, performed reconnaissance geologic mapping of the surroundings, detailed geologic mapping of the site, and excavation and logging of 13 trenches to explore the "anomaly," all of disclosed that the anomaly represents a continuous, favorably oriented, very resistant layer of volcanic breccia overlying favorably oriented, softer and more erodable sedimentary rocks. Differential erosion created the topographic anomaly, which is not a landslide.

CITATION DESCRIPTION OF VIOLATION
VIOLATION COMMENT

"There was no mention of a possible landslide at the site as shown on Huffman 1980 landslide map."

I bought this property in 1968, 12 years before publication of the Huffman map. Before the purchase I examined the site and surrounding sites extensively and those examinations demonstrate conclusively that no landslide exists on the site.

"[Subject's] explanation of the "anomaly" did not appear in either the 1999 geotechnical report or in his report of percolation test results."

It is not the purpose of a percolation test report to delve deeply into geologic issues. The geotechnical report prepared by Brian A. Robinson shows clearly in trench logs and in the geologic cross section that a break in slope is present on the site where a geologic contact is present between volcanic breccia that is highly resistant to erosion and a sedimentary unit that is more susceptible to erosion.

"However, [Subject] did not review or at least did not report review of aerial photos and the back-hoe (sic) excavations were of limited depth."

There is no regulatory requirement for aerial photo analysis on any site. On this site, surrounding high peaks and ridges allow a direct observation of the site from above that is more valuable than any air photos could be. The geotechnical report is based on an extensive subsurface investigation that included backhoe trenches that varied in depth up to 12 feet. While it is true that any exploratory excavation of any type is "of limited depth", the trenches located on a map in the geotechnical report were deep and there were many of them. Note that there is no hint in the citation that the Robinson data, conclusions and recommendations are in any way flawed.

"...[Subject] knew or should have known the [geotechnical] report was missing important information regarding the potential existence of slope failure(s) that required discussion and resolution."

Subject's investigations and the geotechnical report show that there is no indication of any existing or potential slope failure on this property.

"The Huffman landslide map should have been discussed in the 1999 geotechnical report and possibly the percolation test results report. The topographic 'anomoly' as (sic) a minimum should have been discussed in the 1999 geotechnical report including [Subject's] explanation of its origin. [Subject's] knowledge of potential adverse slope stability issues that were not properly reported represents a departure of (sic) standard of care and a failure to fulfill the duty of a professional."

There is no regulatory requirement that the language in any report follow any particular format. The only things that matter are to acquire sufficient data, interpret the data correctly and to make appropriate recommendations. There are no "....potential adverse slope stability issues..." on this site to report.

"Whether or not there is a landslide on the property is not relevant. The issue is the omission by [Subject] of data suggestive of a landslide(s) and a subsurface investigation designed to reasonably determine the existence or absence of a landslide(s) at the subject site. These omissions are a departure from the standard of professional practice and are evidence of negligence".

The report relevant to this charge was prepared by another geologist and is his responsibility not the Subject's.

There was an extensive subsurface investigation, reported in the geotechnical report, which conclusively demonstrated that the topographic feature suggestive of a landslide is not a landslide.

 
 
 
 
CASE CG 2012-06
ALLEGATION RESPONSE

"The complaint alleges that [Subject] authored a geologic map, which you provided to the North Coast Regional Water Quality Control Board that inaccurately locates/depicts the work done by others, does not differentiate whose work is being presented on the map, and does not present [Subject's] signature on the map."

The map in question has not been provided to me for verification, so I can respond only generally.

I have been involved on this project since January 2005, and have never prepared a geologic map showing my interpretations of geologic conditions in the presently proposed grading and building areas.

On February 14, 2011, I attended at my client's request a meeting with staff members of the North Coast Regional Water Quality Control Board at their offices. Discussions included methods of presenting geologic information for grading/building projects, during which I explained that a proper map for a geotechnical report should relate the geologic features on the site to the proposed site development. The geotechnical report for the project instead provides two maps at different scales, one showing "areas" proposed for construction without actual building footprints and the other shows geologic features. This appears to avoid showing how the development will be affected by abundant landslides that reportedly exist on the site.

I had with me a sheet of the grading plan on which I had plotted the consultant's geologic data as a working document in the course of my project review. I made it abundantly clear so there could be no misunderstanding that the map was made for my in-house use by transferring the consultant's landslide depictions from his geologic map to a grading plan at a much different scale (i.e., no professional geologic judgment was used in drafting the map). In no way did the map we discussed on February 14, 2011 in the NCRWQCB office represent my data or interpretations. It was simply an example of the kind of map that should have been prepared by the consultant for public and public agency review, useful for the discussion we were having.

The Board staff at the meeting agreed that such a map is needed for the public review process and asked for a copy of my in-house map for their use in reviewing the project. I agreed to provide a copy of this working document with the understanding that it was a drafting exercise only (transferring landslides from a small scale map to a grading plan) and in no way represented my interpretations of site conditions. In fact, I disagreed with a number of representations on the map as discussed in my September 9, 2010 report to my clients. The map does not bear my signature because it does not represent my data, interpretations or opinions and was prepared strictly for my own in-house review use. There is no regulatory requirement that a working document be signed by the reviewer or anybody else.

"The complaint alleges that the larger landslide (south of the caves) (sic), [Subject] overstated the location of the slide, the location of the headscarp, and the elevation of the slide. The drawings depict the slide as laying over the area a wine cave when in fact that is not the case. Additionally, the map does not differentiate the landslide mass from the scarp as the geotechnical consultant has depicted."

As stated above, the map in question was a drafting exercise completed during my review for my in-house use in understanding the consultant's mapped landslides in relation to proposed grading and building construction. It is a map that in geologic practice is required of the project consultant by the accepted standard of care, but was not presented in the consultant's report.

Differentiating a landslide mass from the scarp, is an irrelevant distinction for a reviewer who is simply trying to understand the consultant's depiction of landslide-affected areas of a site. In fact, landslide scarps are oversteepened slopes created by landsliding that are themselves subject to failure and "headward enlargement" of the landslide(s). It is the consultant's task to clearly indicate these kinds of features on a proper geologic map, not the reviewer's task.

"The complaint alleges that [Subject is] acting as an opponent to the project occurring in [Subject's] neighborhood and that [Subject is] providing profession (sic) geologic opinions of which [Subject] cannot be impartial and using [Subject's] geologic license to injure the reputation of professionals working on the project and business of the property owner".

The Mitigated Negative Declaration for the project released by the Sonoma County Permit and Resource Management Department (PRMD) in 2005 stated that there were no slope stability problems on the site. This was similarly concluded by the consultant's (RGH) geotechnical report and supported by the technical reviewer (Kleinfelder) of the geotechnical report. In researching published regional geologic maps, and examining stereoscopic pairs of aerial photographs of the site, it appeared to me that landslides are abundant on the site.

The validity of my observations and reviews on this project is proven by the fact that the proposed building locations have been moved in an attempt to avoid the very same geologic problems that were initially denied by Sonoma County PRMD, by the geotechnical consultant RGH, and by the reviewer hired by PRMD, Kleinfelder. Only after the Kleinfelder geologic reviewer attacked me personally in a public hearing on this project and Kleinfelder was replaced as reviewer by Cotton-Shires and Associates were the issues raised in my reviews affirmed.

It is absurd to suggest that those who failed to identify the geologic hazards on the site are "impartial" and the person who recognized those same problems so long ago is not. With regard to alleged injury to the reputation of professionals working on the project, it is their failure to recognize the geologic hazards affecting the project, affirmed by the second geotechnical reviewer (Cotton-Shires and Associates), by the Board for Geologists, and by other professionals who also reviewed this project, that caused any injury to their reputations that may or may not have occurred. It is not I who did that.

CAUSE FOR CITATION
VIOLATION RESPONSE

"...[Subject] violated the Geologist and Geophysicist Act (Business and Professions Code section 7800, et seq.) related to a project identified as 245 Wappo Road located in Santa Rosa, California. Specifically, you prepared what you have stated was a "Working Draft Map" to show the North Coast Regional Water Quality Control Board (NCRWQCB) "what a proper geologic landslide map could look like" and the NCRWQCB subsequently accepted said map and entered it into the public record as "Exhibit B" on April 13, 2011. Once "Exhibit B" was officially accepted by the NCRWQCB it: 1) was no longer an "in house" document that does not require a stamp and/or signature; 2) became a public document that the NCRWQCB and other interested parties were going to review and possibly rely on; and 3) became part of the practice of geology "for others" and; therefore, failure to sign or stamp said map with your professional geologist seal constitutes a violation of Business and Professions Code section 7835."

In my complaint response dated December 3, 2012 I stated on page 4 "At the outset, the map in question has not been shown to me so I can only speculate as to what the Complaint is referring and respond in general terms to this item". In not showing me the map in question I was denied due process. Now the due process problem is compounded. The Citation states that the map in question "...was entered into the public record as 'Exhibit B' on April 13, 2011". Not only have I not been shown the so called "Exhibit B", I didn't even know until receiving the Citation that it existed, again denying me the opportunity to see a critical piece of evidence in this matter. It is completely inappropriate to withhold from me the opportunity to see the use to which the map was put and to compare that use by NCRWQCB to the use NCRWQCB said they intended for it in the February 14, 2011 meeting in the NCRWQCB office. If the actual use of the map differs from the intended use represented to me by NCRWQCB on February 14, 2011 I was misled and am obviously the victim here, not the perpetrator of a prohibited act.

Informal exchange of information between colleagues is an every day occurrence in science. Obviously, we each have a choice in whether to provide copies of in-house unpublished information to others who request it. An example is a review of a winery project I recently did. On that project, Cotton, Shires and Associates Inc. had been working for Sonoma County as a geotechnical reviewer and they had made an informal photo-interpretation landslide map and a boring log for their own in-house use. I asked Cotton Shires for a copy of that informal, unsigned map and boring log, (which were referenced in the project file at the County), and was given a copy of each. I also asked Cotton Shires for permission to use that unsigned photo-interpretation map in my review report and that permission was granted. That is how science is supposed to work and I acknowledged and thanked Cotton Shires in the report I prepared.

I did not prepare the map in question here to show the NCRWQCB "what a proper geologic map could look like." The map I showed the Board staff in attendance at the meeting in their office was one I had prepared for my own in-house use during my review of the project. When the Board asked for a copy they said it would be used in-house as an example of what a comprehensive geologic might look like so they could consider asking for such a map on the Cornell winery project. They never said they were going to use that map in any public way. If they changed their minds about how the map was going to be used they never told me. My permission would be required for any public use of that map and no such permission was ever requested or granted.

Putting a sinister face on sharing of information by colleagues is in conflict with the goals and practice of science and is a denial of everyday reality in the pursuit of scientific knowledge.

"[Subject was] actively engaged as an advisor to an organization that opposed the project, which is a conflict of interest and constitutes a violation of Title 16, California Code of Regulations section 3065(d)(1)."

Nowhere in the original Complaint letter dated November 6, 2012 am I accused of "Conflict of Interest" based on an alleged "...advisor..." status with a project opponent. Thus, this Citation item is one I have never been provided an opportunity to respond to and disprove. This is a violation of my right to due process that all Americans are supposed to be protected by.

The Citation does not identify the organization that I was supposedly "...actively engaged as an advisor to..." but that may be a reference to an organization called NOWWE that is dedicated to the protection of Mark West Creek. I have never belonged to NOWWE, nor have I ever belonged to or been active in any way in any other environmental organization. Had I been given an opportunity to respond to this allegation I would have provided the board with this information.

Furthermore, the NOWWE organization has engaged numerous professionals with various expertise to review consultant reports and provide the organization with studies to use in evaluating various project impacts on Mark West Creek. These consultants include: Stacy Li PhD Fishery Biologist, Peter Baye PhD Botanist, Jules Evans Wildlife Biologist, Patrick Higgins Fishery Biologist, Greg Kamman Professional Geologist/Hydrogeologist, James Robinson Civil Engineer/Professional Geologist/ Engineering Geologist, Dean Gregg Civil Engineer/Professional Geologist/Hydrogeologist. My involvement in this project did not differ from theirs in any way.

According to the Citation, I violated Title 16, California Code of Regulations Section 3065(d)(1) that states "A Subject shall not concurrently engage in any other business, occupation, or have a financial interest in any entity that may impair his or her independent judgment and/or objectivity, or which may create a conflict of interest in rendering his or her professional services."

During my work on this project I was never engaged in any business or occupation other than writing geologic reviews. I have no financial interest in any entity which could possibly impair my judgment or objectivity or create a conflict of interest in rendering my services. The Board presents no evidence to support the claim of violation of Section 3065 (d) Conflict of Interest.

The inconsistent and biased application of conflict of interest laws by the BPELSG is illustrated by the case of the Saggio Hills project in Healdsburg. It was discovered by a Healdsburg resident that the City's geological reviewer, James Joyce, had previously done work on this same project for the developer. A complaint was filed over this obvious conflict of interest with the Board for Professional Engineers, Land Surveyors and Geologists, which in a letter dated October 19, 2010 signed by Corrine Gray, BPELSG issued a finding of no conflict of interest.

THE BOOK

The American West at Risk: Science, Myths and Politics of Land Abuse and Recovery

The American West At Risk summarizes the dominant human-generated environmental challenges in the 11 contiguous arid western United States - America's legendary, even mythical, frontier.

It now faces depletion of many of these resources, and potentially serious threats to its few "renewable" resources.
read more...

Purchase Here at Oxford Press

   

ABOUT THE AUTHORS

Dr. Howard G. Wilshire, Geologist; Dr. Jane E. Nielson, Geologist; Richard W. Hazlett, Geologist


Home | Book | Authors | Chapters | Photos | Quotes | References | Resources | Reviews | Blog

© 2005-2011 Howard G. Wilshire, Jane E. Nielson and Richard W. Hazlett

Site visitors may download any text, document or photo, but should use them only
with correct attribution to this website. Any photo not otherwise attributed
(in captions on the photo page) is the property of Howard G. Wilshire.