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 ___________."

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"

Dispatch from the front lines of The EssEff Golf War

Sharp Park 16th & 17th Greens - Photo by Brad Knipstein 

Readers who have followed the twists and turns of the on-going Sharp Park Golf War may recall the WEBLEEDU Axis (Wildly Equitable Biodiverse Litigants for Ecological Extortion and Deep Untruths) had their federal lawsuit to curtail golf  operations at Sharp Park dismissed in December, 2012. Subsequently in March, 2014 they lost the vote on a San Francisco Board of Supervisors resolution intended to sabotage needed Sharp Park habitat and infrastructure improvements. Since then Sharp Park has not been in the news much, but that is about to change.  Time to get caught up.

ITEM: Sharp Park will be back in court on Wednesday March 11

The San Francisco Public Golf Alliance has the details:

"The Federal 9th Circuit Court of Appeals will hear oral arguments on March 11 regarding U.S. District Judge Susan Illston's decision to dismiss the endangered species lawsuit filed by Wild Equity Institute and other environmentalist groups.  Judge Illston in December, 2012 declared the case moot after the U.S. Fish and Wildlife Service issued its Biological Opinion that expressly permits continued operation of the golf course and mandates various other actions to protect the California red-legged frog and San Francisco Garter Snake. The case is Wild Equity Institute vs. City and County of San Francisco, No. 13-15046.  Oral argument will be held in the 9th Circuit Courthouse, 95 7th St. (NE corner of 7th St. and Mission), San Francisco, Courtroom 2 (Third Floor, Room 330), at 9:00 AM before an appellate panel of Judges William J. Fletcher, Andre Davis (a judge from the 4th Circuit U.S. Court of Appeals), and Morgan Christen."

Let's review. In March 2011 WEI et. al. sued the City in federal court over golf operations at Sharp. In December 2012 Judge Susan Illston dismissed the lawsuit, prompting an Orwellian post at WEI explaining that by having their lawsuit dismissed they actually won. Whatever. They subsequently petitioned the court to have the City of San Francisco reimburse them $1.3 million in legal fees which they supposedly expended in the dismissed lawsuit against the City of San Francisco. Really. That happened. Ultimately the judge did award the plaintiffs $386,000 in fees, or about 25% of the "billable hours" they claimed. Subsequently, WEI filed an appeal against Judge Illston's decision to dismiss their suit. Oral arguments are on Wednesday. It will be interesting to hear why they need to appeal a ruling they claimed they "won".

It's now four years on since their initial lawsuit. Four years of delaying what scientists, practical environmentalists and government agencies know will improve the managed endangered frog and snake habitat at Sharp Park.  Four years of WEI continuing to pile up "reimbursable" billable hours. You can't say I didn't warn you.  Stay tuned. 

ITEM: WEI discovers the concept of "winter"

Last December, WEI highlighted a video clip of flooding at Sharp Park during one of the worst storms the region has seen in years.  Apparently WEI is completely unfamiliar with the concept of "winter". Golf courses are outdoor venues and, of course, subject to the vagaries of weather. WEI may be surprised to learn that many golf courses not located in tropical climes actually close completely for "winter". Even tropical venues close for extreme weather events. So it is not surprising that Sharp Park closes some or all of the course for days or weeks during "winter" depending on conditions. For the benefit of WEI, this is called "normal golf operations".  The same kind of  common sense management you would see at any course in the world. Par for the course, so to speak.

ITEM: The San Francisco Public Golf Alliance has a new website.

The SFPGA Announcement:

"We've given our website a facelift! The old website served us well in our early years as a grassroots movement defending our San Francisco municipal golf course civic gems from the misguided and misinformed who seek to destroy them.  The battle for Sharp Park is not over. We need to defend against appeals pending in the courts, support needed infrastructure renovations, push for habitat restoration, persuade our civic leaders, and correct disinformation from disingenuous opponents promoting misleading PR campaigns. We hope this new, improved, more accessible website will help galvanize our supporters and better engage and inform the public about our mission.

The changes are more than skin deep. We have also changed our primary domain from SFPublicGolf.com to SFPublicGolf.org in order to better reflect our status as a 501.c.3 non-profit, public benefit organization.

Help us get out the word about our new site and support our mission. Please - Like us on Facebook! Follow us on Twitter! Link us on LinkedIn! Like our pictures on Instagram! The more social media support we get from you, the bigger the impact we can have as an organization."

They've done great work defending a great course and deserve our support. Follow them on social media, donate to the cause, and play in the 2015 Alister MacKenzie Tournament for Sharp Park.

The San Francisco Public Golf Alliance will continue to fight the good fight to protect this important historic legacy for future generations of San Franciscans, Pacificans, preservationists and golfers the world over. 

Finally, with apologies to Winston Churchill, this...

"We shall defend our golf course, whatever the cost may be, we shall fight in the courts, we shall fight at City Hall, we shall fight in the fairways and on the greens, we shall fight in the pot bunkers, we shall never surrender."

Cross-posted at Fix Pacifica 

The unconscionable hypocrisy of the Wild Equity Institute

The Wild Equity Institute's blatant hypocrisy on the question of Sharp Park finances is almost too brazen to believe. We'll come back to that, but first some good news in the never-ending Golf War.

After successfully defending Sharp Park against the WEI led lawsuit attempting to close the landmark Alister MacKenzie golf course, the City of San Francisco will now fight the plaintiff's Bizarro World motion to have San Francisco taxpayers subsidize their legal fight against the citizens of San Francisco. This story has percolated below the radar of most local mainstream media, but Law360 is on the case:

San Fran Blasts Enviros' $1.3M Fee Bid In Golf Course Case

"A federal judge dismissed the case as moot in December after the U.S. Fish and Wildlife Service issued a biological opinion and incidental take statement for the course, which said restoration and construction activities at the course is not likely to jeopardize the continued existence of the frog or the snake. Despite losing the case, the plaintiffs said it was their lawsuit that led to the city and county seeking the biological opinion and incidental take statement, and that therefore they are entitled to attorneys’ fees. The environmental groups have appealed the judge’s dismissal. 

“Their avowed goal in suing San Francisco was to shut down the Sharp Park golf course,” the city and county said of the coalition. “Had Wild Equity prevailed and achieved its litigation goals, it would not be appealing the dismissal and threatening multiple future lawsuits. Any fee award in this case would, ironically, fund Wild Equity’s continuing efforts to shut down the golf course, an outcome they failed to advance through this lawsuit but have pledged to continue to pursue ‘on all fronts.’

To anyone with a lick of common sense, asking San Francisco taxpayers to pay the legal costs of pursuing a losing lawsuit against the people of San Francisco would seem laughably absurd. But as I explained before, anything is possible when you step into the Looking Glass World of EAJA (Equal Access to Justice Act) & ESA (Endangered Species Act) legal fee reimbursements:

"Regardless of motivation, lucrative reimbursement of legal fees represent a significant financial incentive for litigants from the Center for Biological Diversity and their local "mini-me" variant the "Wild Equity Institute" founded by a relocated CBD staff attorney...  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 to sue us."

If interested in the minutiae of why we may pay WEI to pursue meritless lawsuits against us, this Feburary post goes into excruciating details about the national problem of EAJA / ESA legal fee reimbursement abuse, of which these lawsuits are just one local example. Suffice it to say that the Tuscon based Center for Biological Diversity (CBD) has been reported to be a serial abuser of the EAJA /ESA reimbursement process, and the local mini-me clone - the Wild Equity Institute (WEI)  is following in their footsteps.  With this filing, it is clear that Brent Plater is attempting to replicate the CBD litigation fee reimbursement treasure hunt here in the Bay Area. It's kind of like opening a lucrative local franchise for ambitious environmental litigators.

 In this post we'll focus on the blatant hypocrisy of the Wild Equity Institute and the misrepresentations of the ex-CBD staff attorney who founded the organization.  Like many municipalities during this economic downturn, the City of San Francisco has been wrestling with a significant budget shortfall. In 2010 & 2011, during the worst of the City of San Francisco budget crisis, the Wild Equity Institute organized a coordinated effort to promote a canard that the City was subsidizing the Sharp Park Golf course to the detriment of community organizations and social programs. The claim was demonstrably false, as explained in the video linked below. That did not stop the WEI from soliciting support from community organizations and supporters of progressive civic initiatives to participate in protests and pressure local pols into closing the Sharp Park golf course. These organizations were tragically duped. In fact about $250,000 of the $1.3 million that the Sharp Park Golf course annually  generates in revenues is siphoned into City coffers to pay overhead expenses in the Department of Parks and Recreation and for other City services. On an operational basis, the golf course subisidizes the City and not the other way around.  If WEI was successful in closing Sharp Park there would be less revenue in the city to fund the organizations that WEI conned into promoting the canard.

Some examples of WEI disingenuously promoting this falsehood include WEI founder Brent Plater speaking to the SF Board of Supervisor Budget Committee on June 21, 2010 (At the 5:50 mark in this video) saying: "Here we have an opportunity to take the $300,000 we lose annually and reinvest here in San Francisco.."


Brent Plater's statement in this video is completely, demonstrably false. If Sharp Park closed, it would cost the City an additional $200,000 to $300,000 /year in Sharp Park overhead contributions to City coffers and casuing a net decrease in funds available for City investments.

The same misrepresentation was also distilled into the central message on this flyer promoting an April, 2011 rally at City Hall with a tag line  "Why is San Francisco subsidizing suburban golf in San Mateo County while cutting community service at home?" Of course, the answer is that San Francisco is not subsidizing Sharp Park. Quite the contrary. As demonstrated in the video above, Sharp Park is operationally subsidizing overhead costs for San Francisco city services. The premise of the poster is a lie. But that did not prevent the WEI founder and ex-CBD staff attorney Brent Plater from doubling down on that untruth when speaking at that rally saying: 

"We have a plan to close Sharp Park Golf Course, ... and with the money saved by the City and County of San Francisco, we can bring those resources back to our communities that need it for local services and neighborhood parks." - Brent Plater

 Despicable. If they succeeded in closing Sharp Park there would be even less money available to the City for local services and neighborhood parks.  I don't know how anyone associated with this organization can sleep at night.

If lying to these community organizations about the impact of closing Sharp Park on City finances was not enough, the true depth of their cynical hypocrisy became clear in the motion WEI filed earlier this year in Federal Court. After their lawsuit to close Sharp Park was dismissed, they asked for $1.3 million of legal fees to be reimbursed to themselves from the City and County of San Francisco. As for Mr. Plater himself:

"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. That 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."

Yes, this is the selfsame Brent Plater who can be seen in the video above shedding crocodile tears while disingenuously claiming City community services were being robbed of $300,000 / year by a non-existent Sharp Park subsidy. He is now asking the judge to force the City to put over $470,000 of city funds straight into his own pocket and/or that of his organization Wild Equity Institute. Unlike the fictitious subsidy to Sharp Park that WEI was flogging, the money he is demanding for his legal fees expended suing the City in a losing effort would come straight out of the pockets of the organizations that stood next to him in that rally on the steps of City Hall. I can only hope that someday a local reporter might actually ask Mr. Plater about his hypocritical claims.

Look - there are plenty of good environmental organizations out there that are working in good faith to improve the environment and protect endangered species in a common sense manner. The Wild Equity Institute is not one of them. If you have money to contribute to environmental causes, give it to somebody else.

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

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. That 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 wound 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...