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 ___________."

Not So Sweet 16 [candidates for mayor]

As a direct consequence of our new public financing rules for the mayoral race in San Francisco, we have a cavalry charge of 16 candidates running for mayor. C.W. Nevius explains:

"It would be safe to say that many San Franciscans don't understand public financing...

Raise $25,000 and you get $50,000. Scare up $100,000 and you get a 4 to 1 match for $400,000. No wonder there are 16 candidates for mayor. It's political happy hour... this is a poor use of public funds. This is the first mayoral race with public financing and voters are learning that it allows candidates to get easy money and, in some cases, to waste it.

The weird catch-22 of San Francisco's system is that once the money is spent, a candidate can't drop out of the race unless he or she pays it back. The problem is that a 2007 change in the law made it possible to start pulling in the money nine months before the election. By the time August rolls around, candidates may be hundreds of thousands of dollars in the hole and can't afford to quit."

So we have candidates who are only in the race because we the citizens of SF are paying them to run for mayor with our money. And the peculiarities of our public finance rules mandate they stay in the race in order to continue to suckle at The City's bountiful teat. But this is all fine because - you know - we in SF have a lot of extra money lying around to finance any candidate who wants to run for mayor. Why would we not want to spend $9 million of our tax dollars for the privilege of sorting through sixteen mayoral candidates? I sure can't think of anything better to do with that money.

As Ron Popeil might say - "But that's not all!" At no extra charge we will throw all sixteen candidates into the mix-master of our first ranked voting / instant runoff election for mayor. On November 8th, all San Francisco voters will cast three votes for mayor in rank order of preference. "Rank" being the operative word in that sentence. Rich Deleon ruminates about the election and The City's progressive future in today's Chron Insight:

"San Francisco voters, as usual, have a lot on their plates. On Nov. 8, they will select a new mayor, district attorney and sheriff, and they will decide on eight ballot measures. In the mayoral race, in particular, the burden of choice will be heavier than in most past elections. Voters must choose from a crowded field of 16 candidates, 10 of whom are current or former officeholders and most of whom are serious, well-funded contenders.Under the city's ranked-choice voting system, the voters will need to do more political homework much earlier than in the past, because this election will be a one-day sale without the option of a later runoff election simplifying choice, for good or ill, by whittling the 16 down to two. And as the voters survey the candidates to decide how to rank and vote for up to three, they will also need to consider two rival charter amendments that address the central focus of recent campaign debates, namely, how to control San Francisco's accelerating public pension obligations and rising health care costs to secure the city's financial future."

Who knows what kind of a gawd-awful mess will come out of this election? Recall that in Oakland's 2010 ranked voting mayoral election, candidate Jean Quan had 10 points fewer first choice votes than Perata in the first vote count. I am talking about - Her Honor Jean Quan, the current mayor of Oakland, who had 10 percentage points fewer first choice votes than the loser Don Perata.

The simple fact is that most SF citizens have no friggin' clue about the ramifications of ranked voting/instant runoffs. While the voters may not understand it, be assured the candidates who would otherwise have zero chance of winning a plurality in the election or a majority in a real runoff know how exactly how the voting system can be gamed.

Net net - As a voter it is more important to decide who to exclude from any of your three votes for mayor than it is to pick who you would prefer to see win as your first choice. In fact you may be better off ranking your favorite as your second or third choice. This is Game Theory Gone Wild. We might as well be drawing lots to pick the next mayor.

At this point, all I know for certain about my mayoral vote is that John Avalos will not get any of my three votes. In this blog I have focused primarily on his position on Sharp Park. Obviously that is not the only or even the most important issue facing our city. However, that issue is indicative of a bigger problem with his character and candidacy.

If he is willing to pander to the most radical progressive constituents, to secure their support by denying the unassailable science and documented accounting on our wonderful Sharp Park, and even go so far as to advocate giving away this historically important 100 year old legacy - this gift to the people of San Francisco, then he cannot be trusted with any leadership role in our city government. But with our convoluted crapshoot of an electoral system, and enough second and third place votes, he could very well be our next mayor.

I only regret I have but three votes to not give to John Avalos.

Maybe this is the nature of future SF campaign themes, posters and bumper stickers under this cluster-forked mess. The only message simple enough to distill to a bumper sticker in this system is a message about who to vote against. How about...

"Do Not Vote for Avalos - Not First, Not Second, Not Third, Not Ever."

Death Ride 2009

This post is a shout out to Stan - a friend and fellow traveler on our recent Japan tour. He is taking on the Tour of the California Alps as I write this. The official banner says it all - 129 miles, 5 passes, and 15,000 feet of vertical climb. Or as I say - batshit insane.

At the moment I have my leg wrapped and on ice after getting the knee scoped yesterday. I am eating painkillers, and making my first efforts at restoring some range of motion to my knee post-surgery. I only mention this in order to point out that I'd still rather be me than Stan on a bike in the heat climbing those mountain passes today.

There are some news stories but not much real-time coverage of the event. This guy (cyclocore?) said he would try to tweet and YouTube along the way, but is apparently hampered by crappy ATT coverage. Hopefully I'll update this with pics and results after I hear from Stan.

Good luck and good riding my friend.

++++++
UPDATE: 12-July-09

Received this e-mail from Stan at 10:10 last night:

"Did the death ride - made it to the end."

Congrats Stan! One hell of an accomplishment.

I don't know when or if we'll see pictures from Stan, so I'll just embed a few videos I found from the "cyclocore" guys. To be clear, I have no idea who these guys are, but they are the only ones I could find on the intertubes who were trying to do some real-time posting of the event.

The start:



The finish:



An assessment of some scary weather at the finish - I suspect Stan ran into this:



It'll be interested in hearing how Stan "weathered" the end of the ride. Maybe I can talk him into a guest post.

UPDATE: Stan sent me this picture
Stan and Terry at 8,600 ft heading for the top of Ebbits pass. This is why I can't be a biker - well... besides the discipline and the hours of training and the dedication needed to do a ride like this... besides all that - you have to wear these outfits. That is one step over the line for me.