Pacifica Tribune: Sharp Park Sea Wall OK'd Coastal Commission: Managed Retreat is Not Feasible

The headline in the 11-22-2017 Pacifica Tribune last week tells the story: "Sharp Park sea wall OK'd". I'd link to the story itself, but either they have not posted it on-line or I can't figure out how to find it. The article is a good summary of the recent California Coastal Commission decision granting a permit to the City of San Francisco to maintain and improve the Sharp Park sea wall. Some excerpts:

"The California Coastal Commission, recognizing the importance of the Sharp Park Sea Wall in protecting both Pacifica's historic golf course and the adjacent neighborhoods, has approved a permit to preserve and maintain the structure, including it's rip-rap armoring... 

Commission Chair Dayna Bochco... asked Commission staff what would be the likelihood of the surrounding neighborhoods being flooded without the protection of the sea wall. District Director Dan Carl said, "It's a 100 percent certainty if the berm wasn't there... you would open up a whole new can of worms with respect to Highway One and the residential neighborhoods surrounding the golf course"...  

The sea wall created a fresh-water habitat in the Laguna Salada and surrounding wetlands which are now home to two species protected under the EPA."

For anyone with a lick of common sense, this seemed an obvious outcome. You need only to look at what the Sharp Park sea wall protects:

The choice is simple - either maintain the sea wall, or play Russian roulette every winter waiting for an El Nino bullet to:

• Flood Pacifica neighborhoods
• Flood Highway One
• Salt poison the managed freshwater habitat of  Laguna Salada - home to the endangered California Red Legged Frog and San Francisco Garter Snake
• Flood the affordable recreational resource and important historic public golf course - Alister MacKenzie's Sharp Park masterpiece. 

The Coastal Commission decision was made, but San Francisco Rec & Park repair and reinforcing work of the sea wall is yet to begin. The consequences of a breach would be devastating to the community, endangered species, and Pacifica civic fiscal fortunes. To borrow a phrase: Winter is Coming.

We got lucky last year. The Pacific storm bullets are loaded in the chamber and the cylinder is spinning. Any Pacificans in favor of sea wall work starting before old man winter pulls the trigger might want to attend the Monday November 27 Pacifica City Council meeting and comment on Item 11:

"11.   Resolution supporting the City and County of San Francisco for Sharp Park Golf Course facility berm and maintenance repair and improvements, and incorporating flood mitigation, report, resolution."

It should be an easy decision - right?  Well, it should've been an easy decision for the Coastal Commission, yet 3 of the 12 Commissioners argued against granting the permit. The Pacifica City Council should send a strong, clear message to San Francisco stessing the importance and urgency of maintaining the berm now.

This is not a hypothetical concern. We know what will happen if  the sea wall is breached. We know because it happened before. The smaller un-reinforced berm that preceded the existing structure was over-topped by the 1982-83 El Nino storms. We know the population of endangered California Red-Legged frogs living in the managed fresh water Laguna Salada habitat was devastated by the berm failure. In a "My Turn" letter published in the same Pacifica Tribune edition cited earlier, Pacifica resident Robine Runneals explains exactly what happened to neighborhoods in this excerpt:

Robine Runneals 

"Since the mid-1970's I have owned a home in Pacifica's West Sharp Park neighborhood. I live west of the Coast Highway, south of City Hall, and a block and a north of the golf course. When the Sharp Park levee wall breached in 1983, you could paddle a kayak to the foot of my street. Linda Mar flooded too that year. References are made to the sea wall, but to Pacifica locals it's the Sharp Park levee. 

With this in mind, on Nov. 8 I drove to Bodega Bay with a friend who lives in Fairway Park, to testify at the California Coastal Commission's hearing on San Francisco's application for a permit to maintain, repair, and add trail improvements to the Sharp Park levee. As homeowners we spoke in favor of keeping the levee -- in addition to protecting our neighborhoods, it also protects the golf and its wetlands and frogs and snakes, and serves the Coastal Trail between the Pacifica Pier and Mori Point. It's all good."

I also attended the California Coastal Commission November 8 meeting in Bodega Bay to speak in favor of the seawall permit approval.  Supporters included the San Francisco Public Golf Alliance, other Pacifica residents, and community advocates.  Among them, Paul Slavin:

Paul Slavin

"I’m a resident of Fairway Park in Pacifica, which is adjacent to the Sharp Park golf course.  The golf course and hundreds of my neighbors have been protected for decades by the embankment guarding the western side of the golf course.  The anti-golf extremists for years have objected to the maintenance of the levee in the hopes that the deterioration of the berm would result in the destruction of the golf course.  If that happens, the Fairway Park neighborhood would also face destruction.  The extremists contended some years ago that smaller dikes or levees, placed closer to the residences, would provide protection.  But while they would like to see the existing embankment begin deteriorating right now, and have advocated for its removal for years, no plans have been made for the replacement dikes.  No research, no engineering, no funding, no real thought about that.  It looks to me like the Republicans’ plan to replace Obamacare, which was never actually a real plan.  The loss of the levee at Sharp Park and the sea wall to the north would be devastating to Pacifica.  I urge the Commission to support the strengthening, the armoring, and the regular maintenance of whatever structure is necessary to protect our community.”

In my humble opinion, this permit approval was even more important for Sharp Park than the SF Board of Supervisors Natural Resource Plan approval last spring.  At the hearing for the resulting permit approval commissioners learned why any notion of "managed retreat" permitting the erosion of the berm/seawall is unrealistic, would invite catastrophic devastation and is simply not feasible. This was confirmed by Coastal Commission District Director Dan Carl as noted in the Pacifica Tribune article at the top of the page (100% probability of the neighborhoods flooding without the sea wall), as well reports by the staff of San Francisco Recreation and Park Department who are responsible for maintaining the Sea Wall.

Spencer Potter of  San Francisco Rec and Park:

Spencer Potter

"Managed retreat was one of the alternatives that was looked at under the six alternatives that we provided in the analysis to the Coastal Commission.  And we found managed retreat at this time to be infeasible for several reasons – both the cost it would take to move the golf course and the habitat and the amenities and I mean even the residential areas that might be at risk – inland, would be enormous.  Additionally, as discussed earlier, moving the endangered species habitat raises a variety of issues related to whether you can even do that... " 

Net.. net ...  This was an extremely positive outcome. 30+ years of screwed up permitting for the sea wall by the City of San Francisco was cleared away in a stroke. A solid pragmatic vote by the Coastal Commission confirmed that San Francisco must continue to maintain and improve the existing sea wall to protect the course, habitat, and neighborhoods.  The common sense decision to maintain the seawall is set for the foreseeable future. We just need the work to get done sooner rather than later.

Addendum:
That November 8 Coastal Commission hearing was great local political drama, and a video can be viewed at Cal Span [LINK HERE].  The Sharp Park Hearing is Agenda Item No. 9 (CDP 2-17-0702), starting at 1:01:05 and lasts about 90 minutes. Commission Chair Bochco’s exchange with Director Carl can be found at 2:27:25 – 2:28:49). Someday I may edit a few clips to post here.  Someday.

x-posted at Fix Pacifica

UPDATE - 11/28/2017

I attended the Pacifica City Council meeting and said my peace, as did a number of Pacifica residents and advocates for common sense. I wanted the Council to see the first two minutes of this video with  highlights from the Sharp Park sea wall Coastal Commission hearing.  Unfortunately, computer display facilities were not available, so I'll post it here:

The entire video is about 15 minutes and features the issues highlighted in this post: Commissioner Bochco saying she opposes sea walls in general, but supports a sea wall like Sharp Park protecting habitat and structures; SF RecPark's Potter stating the sea wall is necessary to protect the endangered species habitat, discussing the staff analysis of alternatives like "managed retreat" and finding it insane (my words not his - he used "infeasible");  Commissioner and progressive SF Supervisor Peskin stating that we cannot ignore the existing assets protected by the Sharp Park seawall; Commissioner Groome outlining the cultural and fiscal importance of the golf course and park to the city of Pacifica; Residents of Sharp Park and Fairway Park pleading for protection of their neighborhoods.

All's well that end's well:

The City of Pacifica will be on the record with a letter to leadership in the City of San Francisco expressing the need and urgency to begin work on long deferred Sharp Park sea wall maintenance before the winter storms.

Common sense and rational practicality carried the day by a narrow 3-2 vote.

But... Pacificans - you still have two votes that just don't have any concern or see any urgency about the possibility of winter storms breaching the Sharp Park sea wall. So there's that.

Owen Admires New Frog Expressway

Between the 13th fairway and 12th green. This open water channel connecting Laguna Salada and Horse Stable Pond will dramatically improve the habitat for the California Red Leg Frog that lives here. It was completed despite the efforts of some misguided souls who hate the golf course more than they want to help the frog. You know who you are. 

BTW - Owen joined us at the turn after things were backing up in the canyon. 

Sent from my T-Mobile 4G LTE Device

Wide Stance at Sharp Park

We had a foursome booked for a round at Sharp Park, but Brad had a hangover (my interpretation) so Ed, Zach, and I played as a threesome on a clear, brisk, windy morning. Brad has, of course, now been delegated to the Double Secret Probation Unreliable Golfer List.  

I've once again abandoned the "Live" aspect of my usual "Live Blogging" rounds, in favor of a single post with selected shots. While a relief to my playing partners, not live blogging the rounds to concentrate on my swing does not appear to be helping my game.

 After two rounds in two days at Lincoln and Sharp, with virtually identical (bad) scores, my widely anticipated golf breakthrough will apparently be pushed into 2016. This despite some coaching on the course, as Zach took it upon himself to begin proffering swing advice to both of us. Here he is coaching Ed on weight shift during the swing:

He was also highly critical of my wide stance. I adjusted it to humor him. Surprisingly, some of my best drives were realized with the narrower stance. This might be the golfing breakthrough I've been waiting for.

I've not been to Sharp Park in few months, so was curious to see some of the improvements that were finally implemented at the course after years of pointless litigation. The most dramatic change on the course was the rebuilt bridge and conduit at the 12th hole over the now cleared connecting channel from Horse Stable Pond to Laguna Salada. There should be a name for this bridge, like the "Hogan Bridge" at Augusta, or the "Swilcan Bridge" at St. Andrews. I'm thinking "Brent's Bane"... Just a thought. 

In any case, the frogs are going to love it. With tules partially dredged, algae filling in and an optimal open water breeding channel, we can expect a veritable population explosion of California Red Legged Frogs at the course. It will just make inevitable future litigation by the W.E.B.L.E.E.D.U. Axis that much more difficult for them.  Back to golf....

16th Tee

17th Tee Portrait

Ed brings us home on 18th Tee

We ran into Butch over beer and burgers at the 19th hole...

... where the Sharp Park Social Media Strike Force planned strategy for the coming year.

Oh yeah.

108.

I know.

Pathetic. But another good day of bad golf. 

A Meditation On The Complete Insanity Of The Most Recent WEI Sharp Park Litigation

Courtroom sketch of the proceedings by A. Droid. From the left - Navi Dhillon of MoFo representing San Francisco Public Golf Alliance, Jim Emory of the San Francisco City Attorney's Office representing the City of San Francisco and Shari Posner of the California Attorney General's Office representing the California Coastal Commission.  They are preparing to argue their defense against a WEI (Shawna Casebier and Brent Plater on the right) Motion for a Preliminary Injunction to stop the Pump House Project at Sharp Park.

We won't bury the lede, but we will save the punchline for the end.

Here's the story:

On June 15, the Wild Equity Institute filed yet another Sharp Park lawsuit. This one was filed in San Mateo Superior Court against the California Coastal Commission as well as the City and County of San Francisco and is intended to stop the Sharp Park Safety, Infrastructure Improvement and Habitat Enhancement Project.  Shortly after filing the lawsuit, WEI also filed a motion asking the Court for a preliminary injunction to stop the project currently underway at Sharp Park.  On Thursday, August 20 Judge George Miram denied the motion - as covered by the San Francisco Public Golf Alliance:

"In denying Wild Equity’s motion for preliminary injunction, San Mateo Superior Court Judge Miram found that Wild Equity failed to show that it would likely prevail at trial, and also failed to show that it would suffer greater injury from denial of the injunction than the Coastal Commission, the City and County of San Francisco, and the public course golfers represented by intervener SF Public Golf Alliance would suffer from the granting of the motion."

That's the news. It's good news. But what is missing in the polite legalese description preferred by lawyers and courts, is the complete freaking batshit insanity of this absurd motion by WEI.

For that, we need to take a step back and look at the context. Let me be your guide...

What is the "Pump House Project"?

As summarized by the SFPGA:

"The Pump House Project includes habitat enhancement for the frog and snake, construction of a new frog pond south of the pump house, much-needed infrastructure work at Sharp Park including safety improvements at the pump house, moving the cart path out of the lake at Hole 15, and dredging cattails from a small area of Horse Stable Pond and the connecting channel."

All told about $400,000 and 5 months worth of work. Not a big project, but important and necessary to both the frog and the course.

Who Approved This Project?

It might be easier to list who didn't, but we'll let the City Attorney's Office representing the City and County of San Francisco describe the legal, administrative and political approval process to date - This from their defense memorandum filed in objection to the WEI motion:

"... The U S Fish & Wildlife Service (" the Service") issued a Biological Opinion authorizing continuing golf course operations at Sharp Park and requiring San Francisco to implement this Project to improve the habitat in Sharp Park for the California red-legged frog (" the frog") and the San Francisco garter snake (" the snake") The Project, which Wild Equity challenges in this lawsuit, is subject to approval not only from the Service, but also from the Army Corps of Engineers, the San Francisco Bay Regional Water Quality Control Board, the California Coastal Commission, and California Department of Fish and Wildlife..."

In addition to all of the studies and approvals of the San Francisco Recreation and Park Department sponsored Pump House Project by all of those agencies, the political process also included supporting votes by the San Francisco Board of Supervisors, San Mateo County Board, and the Pacifica City Council.  As if  running the gauntlet of studies, votes, and City, State, and Federal bureaucratic administrative approvals was not sufficient validation, this selfsame project has also survived two previous lawsuits and an Appeal, in both federal and state courts, all of which supported the process and the plan. We are now on the third lawsuit led by WEI to stop this project.

What is the Project Status Again?

As the project needs to be complete before the winter rains in order to improve the frog habitat, and also to meet the Fish & Wildlife Service deadline for the City, the work is well underway.  The cart path on 15 has already been moved 12 feet out of the lake:

And real environmentalists (as opposed to eco-litigators with mixed motivations) were up to their armpits in the swamp  - cutting cattails, opening waterways, building new ponds - doing the hard work of maintaining this managed fresh-water habitat so it will continue to be hospitable for the threatened frog:

Which brings us to the last question...

WTF Is WEI Suing About Now?

More context ...

The California Red Legged Frog (CRLF) is a fresh water species. Laguna Salada was converted from a brackish lagoon to a fresh water lake by the creation of the Sharp Park golf course and the sea wall berm that protects the course, neighborhoods, and the Coastal Highway from seawater incursion. This is an accidentally man-made habitat for the frog, created by human intervention in the natural process, but it can be maintained indefinitely as perfect habitat for the frog for exactly as long as it is actively managed by human intervention. That means keeping sea water out of the lagoon during the dry season and pumping fresh water out of the lagoon during the rainy season so it does not flood the course, causing frogs to lay eggs in temporarily flooded areas where the egg masses may be stranded. You don't have to believe this blogger on this issue. This is what the staff of the California Coastal Commission said in their comprehensive report recommending approval of the project about the consequences if the Pump House Project did not go forward:

"A no project alternative maintains the status quo. First and most simply, the golf course would continue to flood and the flooding would continue to interfere with recreation use. 

There would be biological impacts as well. The lack of wetlands management in years of low precipitation could potentially further allow sedimentation and vegetation to continue to build up, eventually “choking off” the pond, reducing CRLF open water breeding habitat. The pumps could also clog, perhaps to the point where they would be unusable. 

The safety improvements for workers would not take place, which would make it more difficult to maintain the pump house, would put the City at risk of worker claims, and discourage fine-tuning of the pumping protocol consistent with the USFWS Biological Opinion due to the difficulty in reaching the site.  

Sharp Park is unusual in that natural conditions are not necessarily the best conditions for the sensitive species in question here. Under completely natural conditions, without the berm and with no pumping, CRLF would probably not exist at the site as the water would be too brackish. The CRLF began surviving at the site after the water became less salty. Further, if the quantity of water completely followed nature, uncontrolled precipitation levels could result in marginal breeding habitat on the edge of the course, disconnected from the wetlands and isolating the CRLF egg masses."

The Pump House at Sharp Park

This is a picture of the Pump House in question.   It houses the pumps used during the rainy season to maintain correct water levels in Laguna Salada - which keeps frog eggs in the lagoon where they'll hatch and not on a temporarily flooded golf course where they might not. But to keep the intakes clear, pumps maintained, and Laguna Salada water levels optimized for the frog, residential neighborhood and golf course, San Francisco Rec & Park workers need to scramble down a muddy hill to the Pump House at the edge of the lagoon, past a failing old wooden retaining wall, and often do so while a howling Pacific storm is pounding the coast.  To remedy this safety hazard, and make it easier to control this managed habitat, the City plans to build some stairs, walkways, and railings for the benefit of the City employees doing this thankless work.  As described in the City project proposal bureaucratese (Exhibit 2):

"... the pump house is in need of improvement (§30233(4)), to reduce obstructions of water flow to the intake and improve worker safety. The improvements will allow City personnel to monitor and manage water levels, which is necessary to protect California redlegged frog (“CRLF”) egg masses during the rainy season and reduce flooding of the golf course and the risk of flooding of neighboring residential areas. Further, the safety improvements are necessary because City personnel must monitor water levels in inclement weather. Second, wetlands restoration and creation will improve functions and values (§ 30233(6)), and thereby enhance existing CRLF habitat. Approval of the proposed project will therefore assure the continued operation of this vested public service use, promote the safety of City employees, and restore the functionality of the surrounding wetlands."

To make these common sense improvements that benefit everyone at Sharp Park, including the frog, golfers, neighbors and employees, the project specifies that cement piers supporting the walkway will be installed in the wetland area surrounding the pump house. This will result in 1.7 cubic yards of fill in the wetland and impact 12 square feet of the pond surface area for the pathways.

From the "CALIFORNIA COASTAL COMMISSION' S OPPOSITION TO PETITIONER' S MOTION FOR PRELIMINARY INJUNCTION" brief in defense of the project against WEI's motion:

"In connection with the infrastructure and safety improvements to the Pump House, part of the project includes the removal of vegetation and sediment in a 12' x 12' area near the pump' s intake structure, pouring cement for piers to support a walkway that will hang over the water, and the minor expansion of an existing retaining wall. This very small piece of the project, including the installation of the piers for the short walkway and work on the retaining wall, will result in approximately 1.7 cubic yards of fill in the wetlands and impact 12 square feet ( 1.33 square yards) of the water' s surface area — approximately .0003 of an acre."

That's it. That is the reason for WEI demanding a preliminary injunction from the Court to stop the Pump House Project. We are litigating 1.7 cubic yards of fill and 1.33 square yards of surface area representing .0003 acres in a 27 acre wetland of a 417 acre park.

Lets do the math... I calculate that to be .00001% of the wetland.   That translates to 1/10,000,000th (one / ten millonth) of the managed wetland habitat at Sharp Park will be impacted in order to implement a project that permits workers to safely and effectively maintain and manage the water flows to the benefit the threatened species completely dependent on active human management of this habitat. Not to mention preventing flooding in local neighborhoods and of Highway 1.

That is what this hearing and judgement was about. With a record El Niño waiting just over the horizon, WEI feels it is more important to risk accurate management of the frog's habitat, the health and safety of City workers, flooding of neighborhoods, Highway 1 and the beloved historically important Sharp Park golf course, all in order to avoid filling 1.7 cubic yards of a 27 acre wetland.

And they are asking the Judge to accept their opinion over that of the California Coastal Commission, U.S. Fish & Wildlife Service, Army Corps of Engineers, San Francisco Bay Regional Water Quality Control Board, California Department of Fish and Wildlife, San Francisco Rec & Park Department, the San Francisco Board of Supervisors, and State, Federal, and Appeals Courts, all of which passed judgement approving this project.

What is the bottom line?  You give it a try.

Fill in the blank:

"Wild Equity Institute, as a functioning organization, is ___________."

Jackie Speier, GGNRA, Mori Point, Sharp Park, Dogs, and Ross Mirkarimi

Attended Congresswoman Jackie Speier's Townhall Meeting to welcome new GGNRA head Christine Lehnertz. I was surprised to find a full house with SRO in the banquet room of Nick's Restaurant at Rockaway beach in Pacifica. Billed as a brainstorming session for how to celebrate the hundred year anniversary GGNRA next year, she got an earful about recreation with dogs in Golden Gate National Recreation areas. I don't blame these folks, they've been fighting this battle longer than we've been fighting to protect and preserve the Sharp Park Golf Course. Interestingly enough, it's the same characters on the other side of the argument.

Bo Links of SFPGA offers Centennial Suggestions for the GGNRA

We were there to show the flag for the San Francisco Public Golf Alliance. Jackie Speier has long been a supporter of the Sharp Park Golf Course, recognizing it's importance to the community, historical significance, and important recreational service it offers to students, retirees, and a diverse clientele of blue collar golfers.

Some interesting overlapping threads at this meeting - more than I can sort out in this post - so I'll just list them:  As noted, a key objective of the W.E.B.L.E.E.D.U axis is to force the City of San Francisco to turn over control of Sharp Park to the GGNRA, thereby ensuring the destruction of the course. Early on, I exchanged words with then SF Supervisor Ross Mirkarimi (yes - that Ross Mirkarimi) at a Board of Supervisors hearing with a "compare and contrast" argument over the potential role of  the GGNRA at Sharp Park vs. their work at Crissy Field.  The GGNRA manages the Mori Point park just south of Sharp Park. The same field biologist the GGNRA relies on for expert advice to enhance the endangered frog and snake habitat at Mori Point helped develop the plan being implemented San Francisco Rec & Park at Sharp Park (over the objection and non-stop lawsuits of the WEBLEEDU's).

Finally, over the years - I've taken a lot of pictures of the GGNRA run Mori Point Park from the 16th Tee at Sharp. It was a beautiful sunny day in Pacifca when the meeting broke up. I decided to take the opportunity to walk a couple miles of Mori Point trails and take some pictures of Sharp Park from Mori Point:

Sent from my T-Mobile 4G LTE Device

REPOST: Why the SF Sharp Park lawsuits will never end - We pay them to sue us.

In today's San Francisco Chronicle, columnist C.W. Nevius linked our little blog highlighting a post I wrote two years ago. Delighted with the attention, but since he linked the home page, I am reposting the article he references so it is easy to find.  The original post is Linked Here, a follow up post is Linked Here, and the complete repost is below following this excerpt from his column:

Losing a Lawsuit Can Mean Financial Gain

By C.W. Nevius July 10, 2015 

"Illston was not impressed. In her ruling, she said the plaintiffs’ lack of success led “the Court to believe that a large majority of the time spent was ‘excessive, redundant, or otherwise unnecessary.’” What’s more, she wrote, “plaintiffs failed to satisfactorily explain why Glitzenstein and Crystal, at $700 an hour or greater, spent so much time on this case. Most of the issues in this case were not complex. Yet the Washington, D.C., attorneys account for half of the attorney hours spent on the case.” So, you assume, that was the end of that. The institute didn’t win and the judge thinks the fees are excessive. Not so fast. Illston cut the amount, but still awarded $385,809, paid by San Francisco. A tidy sum for a losing effort. 

Blogger and “enthusiastic but bad golfer” Mike Wallach was one of the first to pick up on this. In his blog, MW Mobile Blog, he created a post in 2013 headlined, “Why Sharp Park lawsuits will never end: We pay them to sue us.”

*****

REPOST from 2/11/2013 (with repaired links):

In December U.S. District Judge Susan Illston dismissed a lawsuit filed by the W.E.B.L.E.E.D.U. Axis (Wildly Equitable Biodiverse Litigants for Ecological Extortion and Deep Untruths) to shut down the City's landmark Sharp Park golf course.  This led some to wonder whether the long running Battle for Sharp Park might finally be over.

Spoiler alert: No.

I was laboring under no such illusion. On Friday February 8, 2013 the WEBLEEDU's filed a pleading with Judge Illston that demonstrates exactly why these lawsuits will never end:

Anti-Golf Activists Now Want San Francisco to Pay $1.3 Million Legal Fees

"In a curious twist in the long-running fight between anti-golf activists and San Francisco over the fate of the city’s historic public Sharp Park Golf Course, the Tucson-based Center for Biological Diversity, Wild Equity Institute, and a handful of other groups filed a motion here today in Federal Court, asking the same Federal Judge who dismissed their lawsuit in December, 2012 to order the City of San Francisco to pay their legal bill of more than $1.3 Million... The Plaintiffs’ fee motion was filed under a provision of the Endangered Species Act that authorizes the Courts to award legal fees “whenever the Court determines such award is appropriate”.  Plaintiffs seek payment for more than 2,000 hours of attorneys time, most of which are billed at hourly rates between $550 and $750."

The press release quotes Bo Links of the San Francisco Public Golf Alliance echoing the feelings of most people hearing this story - with bemusement and incredulity:  “It’s a head-scratcher... This is environmental litigation in Wonderland... they lose every motion they file, and their case is thrown out.  And now they want the Court to order the City to pay their attorney’s fees?”

Of course it makes no sense. But that does not mean the WEBLEEDU's won't get paid.  It is very possible that the people of San Francisco will be forced to pay some or most of their attorney fees. Welcome to the Looking Glass World of EAJA (Equal Access to Justice Act) legal fee reimbursements.

The NeverEnding Sharp Park Lawsuits

In recent years, similar legal fees have often been awarded to at least one of the plaintiffs - the Tucson based  "Center For Biological Diversity".  Regardless of motivation, lucrative reimbursement of legal fees represent a significant financial incentive for litigants from CBD and their local "mini-me" variant the "Wild Equity Institute" founded by a relocated CBD staff attorney.  Think about it. As a lawyer, why go through all that hard work finding a client who will pay your hourly rate if you can just sue a federal agency, state or local municipality and have a judge grant you whatever fees you request?

The simple reason why these lawsuits in general and the Sharp Park lawsuits in particular will never end, is that we - the taxpayers - at a federal, state, and even municipal level are paying environmental ambulance chasers a lot of money to sue us.

Why, you may ask,  are we paying these fees? Therein lies a tale of unintended consequences.  For thirty years we have been sliding down a regulatory slope that started with Equal Access to Justice Act, was accelerated with the Endangered Species Act, and flew off the cliff with a series of poorly thought out legislative modifications and judicial decisions.  As a consequence, the good intentions of both these legislative acts are now regularly abused and perverted into something that was never anticipated by their authors.  This sordid legislative history is worth a detailed look, but first - What kind of a financial incentive to sue are we really talking about?  The recent Sharp Park filing is a good illustration.

The Sharp Park Legal Fee Reimbursement Windfall

Brent Plater was the lead attorney on the dismissed lawsuit against the City of San Francisco regarding Sharp Park. Mr. Plater learned the environmental litigation game when he was a staff attorney at the Center for Biological Diversity. He branched out on his own and created the Oakland based Wild Equity Institute in 2009. As a non-profit they are required to file IRS Form 990 every year. The WEI forms for 2009 - 2011 are linked here.  This is what they say:

• In 2009 WEI had $19,755 in revenue from contributions and $686 in expenses, none of which was paid out in salaries for Mr. Plater or anyone else on the staff.
• In 2010 WEI had $38,919 in revenue from contributions and membership fees and $31,425 in expenses including $7,680 in salary expense and $14,465 in fees paid to independent contractors. According to the form, Mr. Plater was the only one on staff to receive a salary - a sum of $6,209.
• In 2011 WEI had $100,918 in revenue from contributions, memberships, and "government fees" against $118,839 in expenses including $26,998 in salary expense and $73,594 paid to independent contractors. Mr  Plater received a salary of $23,028.

Their 2012 filing is not yet available, but I will update this post with the most recent information when available. There is no information on the form regarding who received the specific independent contractor payments.

The picture that emerges over the first three years is a small environmental activist organization staffed primarily by committed hard working volunteers working without pay - except for Brent Plater.  All well and good. That is the context.  Now lets look at the Sharp Park motion filed in District Court last Friday and the legal fees requested for reimbursement:

Case No.: 3:11-CV-00958 SI

PLAINTIFFS’ MOTION FOR AN AWARD OF ATTORNEYS’ FEES AND COSTS 

According to Plaintiffs’ counsels’ contemporaneously maintained billing records, counsel have thus far spent the following number of hours on this case through January 31, 2013: 

Brent Plater: 857.7 hours

Howard Crystal: 844 hours

Eric Glitzenstein: 282.75 hours

Shawna Casabier: 47.15 hours

Kelli Shields: 217 hours

In addition, paralegals spent 691 hours working on the case... 

In light of that experience and background, Plaintiffs request the following rates for counsel: $750/hour for Mr. Glitzenstein; $700/hour for Mr. Crystal; $550/hour for Mr. Plater; $295/hour for Ms. Casebier; and $250/hour for Ms. Shields... 

Applying the requested hourly rates to the number of hours for which recovery is sought, Plaintiffs are entitled to a fee award of $ 1,451,556.  However, to account for any billing discrepancies, Plaintiffs are affirmatively reducing that request by 10%, to $1,306,400...

For the foregoing reasons, Plaintiffs respectfully request that the Court grant their fee Petition and award fees in the amount of $1,306,400 and $59,409 in costs.

All of the listed attorneys are identified in the motion  as "Attorneys for Plaintiffs". Since I have no idea how that breaks down between all the players in the WEBLEEDU Axis,  let's just focus on the lead attorney - Brent Plater, President of Wild Equity Institute.

 Mr. Plater is submitting his bill to be reimbursed for 857.7 hours at a rate of $550.00 / hour. His total fee on the case so far:  $471,735.00. This for his billable hours working on a case that was initially filed in March 2011 and continued through January 2013 when they filed an appeal after it was dismissed. The legal fees he is requesting is more than four times the total revenue that came into the Wild Equity Institute for the first three years of its existence. Not bad pay for 20 months work. And that is only one lawsuit. Active or imminent, there are more WEI / Plater lawsuits in the works. 

This begs all kinds of questions.  I have no visibility into what Mr. Plater would do with the funds should the court decide to reimburse him for his time as he has requested. My assumption is that as a committed environmentalist leading a struggling new environmental advocacy organization staffed by unpaid volunteers, he would naturally funnel the funds secured as a consequence of his leadership role in WEI back into WEI in order to continue its work.  That is what any commited leader would do. He would, of course, continue to draw a salary commensurate with the success and non-profit nature of the organization.This structure is sensible, if for no other reason but to avoid the appearance of a conflict of interest with the organization he runs. In the most recent IRS filing, he took about 25% of the WEI revenues as a salary.

In any case, it would be a good question for an investigative reporter to ask directly of Mr. Plater.  Just where would the money go if he prevails?

I have more questions, but first an apology.

Earlier in this post, I compared WEBLEEDU lawyers to "ambulance chasers". That was not right.  "Ambulance chaser" is a term that is sometimes used to describe personal injury lawyers who represent people hurt in accidents.  Personal injury lawyers generally work on contingency, which means they only get paid if they win a judgement in a court of law.  In the Sharp Park case, the WEBLEEDU plaintiffs are asking for $1.3 million  in legal fees to be reimbursed for a case they lost. A case that was dismissed.  My previous comment comparing the Sharp Park litigants to ambulance chasers was completely unfair. My apologies to any ambulance chasers reading this post. 

I really should end this post here, but I've got a more few more questions. To the casual reader, I suggest you stop reading now. I'm am about to embark on a deep dive. No telling how long this post is going to be.   If you are interested in accompanying me down the rabbit hole...

The 9th Circuit has something to say about WEI's appeal of their dismissed Sharp Park lawsuit.

Two weeks ago the United States Court of Appeals for the Ninth Circuit heard oral arguments for a Wild Equity Institute (WEI) appeal of district Judge Susan Illston's December 6, 2012 decision to dismiss the WEI lawsuit against the City of San Francisco and Sharp Park golf course. She dismissed the case as "moot".

Today the 9th Circuit Court of Appeals rendered their judgement of the WEI appeal.

Before we get to that judgement, a bit of context. In a recent post I attempted to translate the lawsuit legalese by offering my decidedly non-legal understanding of the merits of the WEI appeal. To whit:

"In this case, in simple terms, the Wild Equity Institute sued the City of San Francisco over whether they had the right permits and permission to continue golf operations, enhance the frog habitat, and provide needed infrastructure maintenance. The judge determined that the City did indeed have the correct permits and permissions, found the WEI lawsuit moot, and dismissed the case. WEI subsequently declared victory, and asked their legal fees to be reimbursed as a reward for managing to successfully get their own lawsuit declared moot. After the judge granted them 1/4 of the legal fees they wanted they issued another triumphant press release. Then they subsequently appealed the judgement of the lawsuit they claimed that they won.  For us, the untutored, non-lawyerly, great unwashed, this comes across as complete horseshit."

As it turns out, the 9th Circuit Court of Appeals agreed with my assessment. Perhaps the most remarkable aspect of their decision is that it was rendered in only 600 words and less than two weeks after hearing oral arguments. 100 of those 600 words were consumed by the title of the lawsuit and listing the litigants.  Cripes, I can't even write a blog post introduction in under 600 words. 

Alright. I've teased this long enough.  Here is the decision -  almost in it's entirety:

"Wild Equity Institute appeals from the district court’s order dismissing this case as moot. This case originated as an Endangered Species Act (ESA) Section 9 claim against the City and County of San Francisco, which was then operating Sharp Park Golf Course without any type of ESA permit. After Wild Equity filed suit, the City requested that the Army Corps of Engineers initiate consultation with the Fish and Wildlife Service (FWS) under ESA Section 7 in connection with the City’s application for a Clean Water Act (CWA) Section 404 permit. The district court stayed proceedings pending the outcome of the consultation, then concluded that the case was moot once FWS issued its Biological Opinion and Incidental Take Statement (ITS) following the Section 7 consultation. Wild Equity argued on appeal that the ITS had no independent force prior to its incorporation into the City’s CWA permit. However, the Corps has since issued the relevant permit, which incorporates the terms of the ITS. California has also provided its state certification as required under CWA Section 401. Accordingly, and as Wild Equity has acknowledged, this appeal is moot... 

The issuance of the ITS and CWA permit have also fundamentally changed the legal landscape within which the parties are operating, reducing the likelihood that this issue will arise again between these particular parties... We therefore lack jurisdiction over this appeal. APPEAL DISMISSED."

I believe I have become adept at translating legalese into common parlance. Given that this decision was rendered so quickly (2 weeks), and so succinctly (600 words) , and specifically called out as a "memorandum"  disposition that is "not appropriate for publication and is not precedent" (i.e. not all that important) - I conclude that the 9th Circuit Court of Appeals disposition of the Wild Equity Institute Appeal can be distilled to: "Why the f**k are you putting this crap in front of us?" 

Why, indeed.

We can't say "thank you" enough for the continuing good work from the San Francisco City Attorney's office led by Dennis Herrera and represented in court by Jim Emery, the San Francisco Public Golf Alliance founded by Richard Harris & Bo Links, and Joseph Palmore from the offices of Morrison & Foerster.

On to the next battle. They've lost the political battle with both the Pacifica City Council and the San Francisco Board of Supervisors. They've lost in Federal Court. They've lost in the court of public opinion. Now they are moving to regulatory agencies, specifically the Coastal Commission. The hearing is in two weeks. Onward.

More on the San Francisco Public Golf Alliance Website

To be moot or not to be moot - that is the Sharp Park legal question.

The latest battle in the Sharp Park Golf War took place at the 9th Circuit Court of Appeals in San Francisco on Wednesday, March 11. The plaintiffs for the underlying lawsuit that was dismissed as "moot" in Judge Susan Illston's district court included the usual suspects from the WEBLEEDU Axis.  Neither Center for Biological Diversity nor Sierra Club lawyers were evident for this appeal of the "mootiness" of their common complaint. Wild Equity Institute stood alone at the bar.

We need a scorecard to keep track of all the lawyers involved in the never-ending story of the Golf War. It all started with lawyers from the Tucson-based Center for Biological Diversity (CBD), who can be credited with exploiting the unintended consequences found at the intersection of the Equal Access to Justice Act (EAJA) and the Endangered Species Act (ESA). This organization built the model for the lucrative eco-litigation racket which has since been emulated by many enviro-activist law firms across the country.

WEI and SFPGA on the bench

As noted, the opening volley in The Sharp Park Golf War was fired by CBD in 2008 when they threatened to sue the City over Sharp Park golf operations. In 2009 a CBD staff attorney founded a "mini-me" clone of CBD in the Bay Area - The Wild Equity Institute (WEI). He's taken the lead on filing Sharp Park lawsuits ever since, collecting reimbursable billable hours from the City along the way.  It's a simple business proposition. The more lawsuits they file, the more he gets paid. Paid by taxpayers. By us.

 SFPGA and WEI attorneys argue the case

Standing with practical environmentalists, preservationists, and golfers working for and with the City to improve both the species habitat and the course: the San Francisco City Attorney's office led by Dennis Herrera and represented in court by Jim Emery; the San Francisco Public Golf Alliance founded by Richard Harris & Bo Links and represented by Joseph Palmore from the offices of Morrison & Foerster.  The City attorneys are, of course, on the city payroll. The SFPGA and MoFo attorneys are working pro bono.  Which, for us non-lawyers, means they are working the case for free. They are doing this because they believe in the cause of protecting and preserving the civic jewel that is the Sharp Park golf course and the important historical legacy the course represents.

You can read the San Francisco Public Golf Alliance Press Release of the proceedings, or watch the whole thing here:


The three judge panel will render their verdict whenever they get around to it. I won't pretend to be able to assess the legal minutiae argued in the proceedings or predict how the 9th Circuit will rule on the appeal.  Those of us of the non-lawyerish persuasion are forced to rely on common sense and simple language to sort out the difference between a reasonable argument and complete horseshit.

In this case, in simple terms, we understand that the Wild Equity Institute sued the City of San Francisco over whether they had the right permits to continue golf operations, enhance the frog habitat, and provide needed infrastructure maintenance. The judge determined that the City did indeed have the correct permits and permissions, found the WEI lawsuit moot, and dismissed the case.  WEI subsequently declared victory, and asked their legal fees to be reimbursed as a reward for managing to successfully get their own lawsuit declared moot. After the judge granted them 1/4 of the legal fees they wanted they issued another triumphant press release.  Then they subsequently appealed the judgement of the lawsuit they claimed that they won.

For us, the untutored, non-lawyerly, great unwashed, this comes across as complete horseshit.

Interestingly enough, the lawyers for the City and the SFPGA feel the same way. Here is how the "WEI is full of it" perspective is translated into legalese:

Excerpt from:
APPELLEES’ ANSWERING BRIEF
Attorneys for Intervenor and Appellee
SAN FRANCISCO PUBLIC GOLF ALLIANCE

"Wild Equity wants to have its cake and eat it, too; it brought a lawsuit alleging that the City was engaged in take without incidental take authorization. After the City obtained the BiOp and ITS, Wild Equity sought attorneys’ fees on the theory that it had obtained its litigation objectives, namely, requiring the City to obtain an ESA permit for continued Golf Course operations. Wild Equity’s motion for attorneys’ fees repeatedly asserts that the BiOp and ITS are binding, and that the City was legally obligated to comply with ITS terms and conditions. Now, however, Wild Equity has reversed course and contends that the City’s compliance was and is voluntary, and that the City did not become legally bound by the ITS’s terms and conditions upon issuance of the BiOp. 

So, when arguing for attorneys’ fees Wild Equity claimed its efforts directly led to the City’s being bound by the requirements of the BiOp and ITS upon issuance. Now, when seeking to resuscitate its moot claims Wild Equity insists the ITS terms and conditions were merely voluntary. This argument is a familiar one—Wild Equity first raised it in its motion to dismiss briefing before the District Court, SER 0070-72, and then abandoned it in its motion for fees. Notwithstanding Wild Equity’s inconsistent contentions, as demonstrated above, City compliance with the ITS became mandatory at the moment the ITS was issued. 

As the District Court correctly recognized, any take that occurs if the City fails to abide by the ITS’s terms and conditions for ongoing Golf Course Maintenance and Operations activities will immediately be subject to enforcement action by the Service, and Wild Equity could bring a new ESA citizen suit against the City for those violations. Events subsequent to the filing of this action (i.e., the Service’s issuance of a BiOp and ITS) resolved the dispute, and the case immediately became moot at that time."

No matter what the language, the conclusion is the same.  Horseshit. 

We'll see if the judges agree. Stay tuned...

UPDATE: The verdict is in: "Moot Squared"