Federal Judge Stays Conservation Groups' Sharp Park Suit

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U.S. District Judge Susan Illston today rejected the City of San Francisco’s attempt to dismiss a lawsuit filed by six conservation organizations over the ongoing killing of red-legged frogs at Sharp Park Golf Course. Explaining that new evidence and recent Fish and Wildlife Service restrictions have called into question San Francisco Park Department claims that the frog population at Sharp Park is growing, the court ordered the city to obtain authorization from the Fish and Wildlife Service for golf course activities that could harm endangered species. The judge ruled conservation groups have legal standing to bring the case, but stayed the lawsuit until October, when San Francisco could face a court trial over Endangered Species Act violations if it does not obtain a federal permit.
 
“The court’s ruling lays bare the damage golf course activities such as draining water from wetlands exacts on two of the Bay Area’s most imperiled animals,” said Brent Plater, executive director of the Wild Equity Institute. “We expect the Fish and Wildlife Service to require that the golf course cease killing endangered species and propose a comprehensive mitigation and restoration plan as part of any permit.”
 
The Park Department argued that draining aquatic feeding and breeding habitats for the California red-legged frog and San Francisco garter snake at Sharp Park Golf Course somehow benefits the species. In rejecting these assertions, the court cited contradictory testimony from the city’s own experts and staff that the golf course activities harm and kill protected wildlife.
 
“The endangered species permit process will weigh the biological impacts of excessive water pumping and habitat destruction to protect one golf course,” said Jeff Miller of the Center for Biological Diversity. “The permit should force the Park Department to change golf course operations to actually protect imperiled frogs and snakes.”
 
The Park Department has killed endangered frogs six of the past 10 winters, and its so-called “compliance plan” for endangered species has been a complete failure. In February, the department was caught again killing threatened red-legged frogs at the course, draining Sharp Park’s wetlands in a failed attempt to prevent frogs from breeding in their historic ponds.
 
The Washington, D.C. public-interest law firm Meyer, Glitzenstein & Crystal represents the coalition of conservation groups in the lawsuit.
 
Background
The Fish and Wildlife Service last year notified the golf course that it was specifically prohibited from handling or moving frog egg masses at Sharp Park and must obtain a permit for any golf course activities affecting protected species. The Service also denied the Park Department’s request to drain wetlands and dredge lagoons at Sharp Park, cynically referred to by the city as “habitat management and scientific studies.” Water pumping, dredging and other activities harmful to frogs can only occur if the department obtains a federal “incidental take” permit with an accompanying conservation plan.
 
The city-owned golf course at 400-acre Sharp Park in Pacifica is plagued by crumbling infrastructure, annual flooding problems and ongoing environmental violations. More than three-dozen San Francisco community, recreation, environmental and social-justice groups have called for closing the golf course and creating a more sustainable public park at Sharp Park. A 2011 peer-reviewed scientific study by independent scientists and coastal experts concluded that the most cost-effective option for Sharp Park is to remove the golf course and restore the functions of the original natural ecosystem, which will also provide the most benefit to endangered species.
 
The Park Department has refused to consider this option, and is instead pursuing a plan that would evict endangered species from the site and bail out the golf course’s financial problems with tens of millions of dollars of taxpayer money. The San Francisco Board of Supervisors passed legislation in December 2011 to prevent this from happening, but Mayor Ed Lee, an avid golfer, vetoed the legislation. Further action by the board is expected this year.
 
Jeff Miller
Conservation Advocate
Center for Biological Diversity
(415) 669-7357

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Court Stays Case against Historic Sharp Park Golf Course

SAN FRANCISCO – (April 26, 2012) – Federal district court judge Susan Illston, in a ruling issued Friday, April 26, stayed all proceedings in a suit brought by environmental activists seeking to close the historic Sharp Park Golf Course, owned and operated by the City and County of San Francisco but located in neighboring Pacifica. The order, which also denied the plaintiffs’ motion for summary judgment, follows the court's decision late last year to deny the plaintiffs’ preliminary injunction that would have shut down 10 of the course's 18 holes. The case had been scheduled for trial in October 2012.

Sharp Park Golf Course, which is celebrating its 80th anniversary next month, was designed by legendary architect Dr. Alister MacKenzie, who created many of the world’s most hallowed courses, including Augusta National and Cypress Point.  The course is a rarity – a seaside links, created by a master and open to the public at modest greens fees.

“The court did the prudent thing in staying the litigation,” said Bo Links, co-founder of the San Francisco Public Golf Alliance, which intervened in the case in an effort to save the course. “This is the second time that the Judge has ruled against the plaintiffs on key motions.  With the U.S. Fish and Wildlife Service considering the City's Biological Assessment for the golf course, it made no sense for the plaintiffs to insist that the court continue to expend its limited resources on their suit. This winter the frogs once again laid a huge number of eggs at Sharp Park, showing that the city’s efforts to improve frog habitat, while at the same time providing affordable recreation to a diverse and vibrant group of local golfers, are working.”

The plaintiffs in Wild Equity Institute v. City & County of San Francisco had filed a motion asking the court to rule that golf course operations and maintenance "take" red legged frogs in violation of the federal Endangered Species Act. SFPGA and the City challenged plaintiffs' standing to sue, opposed their motion, and asked the court to stay the litigation while the Fish and Wildlife Service considers the City’s measures to address impacts to frogs and snakes and their habitat.

In its 19-page order, the court found that plaintiffs had standing, but denied the plaintiffs’ own motion for summary judgment, and granted San Francisco’s request to stay the litigation. The court explained: “As the FWS may issue a Biological Opinion within months that can at least inform, if not entirely moot, this case, and because the breeding season for the Frog will not occur again until next winter, the Court finds this to be an appropriate case in which to exercise its inherent authority for a stay. The stay will allow for the expert agency to review the City’s plan and evaluate the golf course’s activities on the Frog and Snake.”

SFPGA's lead attorney in the case, Chris Carr of Morrison & Foerster, said: “This is good news for supporters of public golf courses in the Bay Area and beyond. It’s also good news for responsible supporters of the Endangered Species Act, rightly concerned that the Sharp Park case could lead any parade of ESA abuse horribles. Because of the city’s responsible stewardship of Sharp Park, golf fans everywhere, including the many thousands who will be attending the U.S. Open Golf Championship in June here in San Francisco, have reason to be optimistic that extremists will not succeed in misusing the ESA to shut down one of golf’s great historic courses.”

CONTACT:  BO LINKS, 415-393-8099, bo@slotelaw.com

Comments

[The Environment Within]

"The real arbitrator is the federal agency tasked with the oversight of the species you misguidedly feel are yours and yours alone to protect."

Correctomundo, my dear Toddler. And that agency would be U.S. Fish and Wildlife Service (USFWS), which, by the Center for Biological Diversity's own admission, has designated more than 1.6 million acres in 28 California counties as "critical habitat" for the California Red Legged Frog (see http://www.biologicaldiversity.org/news/press_releases/2010/california-red-legged-frog-03-16-2010.html).

And did you know that Sharp Park is not included in any way as part of that 1.6=million-plus-acre critical-habitat designation for the red-legged frog by USFWS? And did you know that by omitting Sharp Park as critical habitat for the red-legged frog, USFWS has determined that whatever happens with respect to the red-legged frog at Sharp Park will have no bearing on the survival of the species? Makes one wonder what is the true agenda of the Center for Biological Diversity, et al.

[Michael Collins]

In February, the department was caught again killing threatened red-legged frogs at the course, draining Sharp Park’s wetlands in a failed attempt to prevent frogs from breeding in their historic ponds.

I was out there in February golfing that day, and the only people I saw endangering the species were Plater's band of college students stomping through roped-off and protected areas.

[todd bray]

Dear sweet innocent Jeff. The real arbitrator is the federal agency tasked with the oversight of the species you misguidedly feel are yours and yours alone to protect.

I wonder how much money to date has been spent by all interested parties in this vicious little battle of yours? And I mean San Mateo County, Pacifica, SF, opposition groups, your various groups, state and federal trustee agencies, the judicial system, TV stations and their advertisers during segments featuring you and this issue, and those not named because I don't know of them. It's got to be millions by now, right?

[Peter Loeb]

http://www.sfexaminer.com/news/2012/04/environmental-lawsuit-close-sharp-park-stalled-until-least-october

Environmental lawsuit to close Sharp Park stalled until at least October
By: Will Reisman | 04/26/12 9:56 PM
SF Examiner Staff Writer

Green light: Sharp Park Golf Course will remain open — for now — despite a legal filing by environmental groups.

A legal filing by environmental groups that are trying to shutter Sharp Park Golf Course in Pacifica hit a roadblock Thursday when a federal judge issued a stay on the lawsuit until October.

The golf course, which is owned by San Francisco but located in Pacifica, has been a hot topic for environmentalists for years. The Wild Equity Institute and other environmental groups claim that the golf course violates provisions of the Endangered Species Act by infringing on the habitats of the San Francisco Garter Snake and the California red-legged frog. The groups, which assert that water pumping and lawn mowers harm the endangered species, had hoped to shut down Sharp Park immediately.

However, on Thursday, U.S. District Judge Susan Illston denied those claims, ordering a stay on the lawsuit until the Fish and Wildlife Service completes a biological study of Sharp Park. If that study is not completed by October, however, the lawsuit can resume.

But the day wasn’t a total loss for environmentalists. The city of San Francisco requested the lawsuit be rejected, but Illston also issued a stay on that motion until October.

The golf course has also been a hot topic in San Francisco politics.

In December, the Board of Supervisors approved legislation that would have entered San Francisco into negotiations with the National Park Service to transfer the course back to the national agency.

The legislation, which was vetoed by Mayor Ed Lee, would not have mandated the closure of the course. At the time, critics said the 18-hole course would have been shuttered had it been transferred to the NPS.

wreisman@sfexaminer.com