Federal Judge Dismisses Lawsuit Against Sharp Park Golf

Download ORDER DISMISSING CASE - 12-6-12

Comments

[Butch Larroche]

Jay Bird, are you still clinging to the five-year-old Golf Survey that says Sharp Park is not in good shape, etc.? If so, that report is so outdated and no longer relevant. Sharp Park has never been in better shape than it is now thanks to the great job our grounds crew is doing.

[TJL]

Good news indeed. B.P. and his group were told by the courts to provide facts and details, which they did not and could not. I also find it funny that the people who want to shut down the golf course have not mentioned that the US Fish and Wildlife Service determined golf would not jeopardize the endangered species. It is amazing how people dismiss a valid point of view when it does not match up to their views.

[Steve Sinai]

Seamus bin McFroggy, I am a man of peace.

[Scrooge McDuck]

As I serenely float along the mosquito insecticide infested Laguna Salada lagoons and observe the commentary of one Shameless McFroggy on my mobile, I must say that this guy totally quacks me up! The only one I can possibly imagine with the hubris to turn a complete judicial bitch-slapping into an unmitigated victory would be Herr Platermeister himself. I mean, if Robert Ripley himself had perused Shameless’ self-serving Sharp Park spin, he would have responded in kind with: “You’ve got to be kidding!”

For those of you scoring at home, the CBD lawsuit was dismissed by the court. If the lawsuit didn’t matter, why did the plaintiffs file it in the first place? Not only does this stretch the limits of credibility, but it’s just plain daffy – see how I did that? And where does this “taking limit of 1 for the snakes and frogs” come from? Sounds like a pretty bad case of Platergander to me – oops, there I go with the waterfowl puns again.

And Shameless, if you’re planning on playing the race card on me, please keep in mind that I am only a duck. Your lame attempts at misdirection roll off me like water off my back.

Scrooge McDuck

[Jay Bird]

Don't expect the public to continue to fund subpar (literally), money-losing, species-killing Sharp Park Golf Course.

[Johnny]

A loss for the liberal kooks with no scientific data. I guess Mr. Plater will have to sue SFO next, since that's where the real problem is.

It's a good day for the sensible, average man!

[Lawrence bin Pacifica (Seamus McFroggy)]

Sinai's attempt to be glib when he's got nothing can usually be dismissed as mere name calling, but not this time. By gaming someone's name by adding the "bin" to it, he's making a subtle racist connotation, using a Muslim name form to imply that someone must be a terrorist at heart -- just like Osama bin Laden.

We've seen this crap before -- by insisting on mentioning Obama's middle name "Hussein" to cast dark shadows, and by extension tarring all Husseins and all Muslims. Racists need to crawl back into their holes and STFU.

[Steve Sinai]

It's always fun to see what kind of spin Brent bin Plater and his Frog Qaeda minions like Seamus bin Mcfroggy use to try to make their losses sound like wins.

[Seamus Mcfroggy]

Here is my quick take on this. This was a win for the those who want to protect the endangered species at Sharp Park; let me explain. The court acknowledged the problem and looked for a remedy, if one could be found that would satisfy the need to protect (for the time being) the endangered species, while retaining golf at Sharp Park. The court found the remedy and therefore the case is now moot.

So WHAT is the remedy? The remedy is the Incidental Take Statement (ITS) issued by the USFWS, which it attached to its "Biological Opinion" (BiOp). In the BiOp, USFWS made a "jeopardy determination" based on the status of the species, the environmental baseline, the effects of the proposed action, and the cumulative effects. To quote the BiOp: "The FWS anticipates that, due to golf course maintenance and operations, all Frogs and Snakes will be subject to incidental take in the form of harassment, and that all Frogs and Snakes in the restoration area will be subject to incidental take in the form of harassment." And THAT is the kicker that the City of San Francisco and the managers of Sharp Park dare not ignore at their peril, should any maintenance and operations practices violate the BiOp and contribute to "take" beyond the accepted limit set by the USFWS -- which is ONE frog or ONE snake!

In other words, the golf operation has no margin for error. If the Sharp Park managers think they can put up their feet and proceed with business as usual, that they are in the clear, they are wrong. What this means in practical terms is no more golf carts off the path, no more golfers looking for balls or peeing in the bushes, no more off-leash dogs in the lagoon, and no more mowing without monitors walking in front of the mowers in addition to many other biological monitoring and conservation practices.

So what happens if the Sharp Park managers don't comply? The court was clear. In the “Terms and Conditions” section, the ITS states that “to be exempt from the prohibitions of Section 9 of the Act, the Corps and the City shall ensure compliance with the following terms and conditions... ." The ITS outlines 31 requirements or sub-requirements that the City and Corps must follow; if they fail to comply, “the protective coverage of section 7(o)(2) may lapse.” Id. at 39, 41-45.

Yikes, 31 conditions! And not only that, but it's an "all or nothing" trigger, to quote the court:

"... the ITS clearly contemplates that the document is self-effectuating: “to be exempt from the prohibitions of Section 9 of the Act, the Corps and the City shall ensure compliance with the following terms and conditions .. . . These terms and conditions are nondiscretionary.” Id. at 41 (emphasis added). Thus, the language contemplates that the City and Corps must immediately comply with all of terms of the ITS for Section 9 immunity, and they cannot wait for a permit that incorporates the terms of the ITS. Furthermore, many of the terms relate to the activities at Sharp Park, which would not necessarily be covered by the Project permit (for example, ongoing activities having nothing to do with construction, like mowing, gopher control, and golf cart driving, or future conservation activities not related to construction, like development of a water quality monitoring plan and future reporting requirements).... because the ITS is self effectuating, even if the Project permit is denied for other reasons, the Corps and the City are required to follow each of the terms and conditions in the ITS. If they fail to do so, their take of the Frog and the Snake will no longer be immune from liability, and plaintiffs will have a new cause of action against them. Similarly, if the Corps issues a permit that fails to incorporate the conditions of the ITS, the ITS will have been violated and plaintiffs can renew their suit. Finally, even if the Corps delays its decision on the permit, the other requirements in the ITS that have nothing to do with the Project (e.g., mowing and golf cart requirements) must still be followed, or defendants will lose their immunity from suit."

It's that "shall ensure compliance" (with the court adding the emphasis) that is the fly in the ointment -- no wriggle room! Sharp Park will be required to have a "Habitat Conservation Plan" and failure to implement it will be a violation of the ESA (the ACT). What are penalties? USFWS may impose administrative, civil, and criminal sanctions for negligent or knowing violations – of as much as $50,000 per day, three years' imprisonment, or both. A fine of as much as $250,000; 15 years in prison; or both is authorized for “knowing endangerment” violations that knowingly place another species in imminent danger of death or serious bodily injury.

So if Sharp Park comes up with a plan and sticks to it and protects the endangered species, hooray! In the meantime, to quote Capt. Picard: "Take this message to the clubhouse ...we'll be watching."

[Butch Larroche]

Great news indeed!!!