Thursday, March 26, 2015

The 9th Circuit has something to say about WEI's appeal.


Wild Equity Institute Lawsuit Loses. Again. And Again. Steve scooped me, but I thought I'd still add my two cents in this post.

As noted, 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 dismissing the WEI lawsuit against the City of San Francisco and the Sharp Park golf course. At the time, she dismissed the case  as "moot".

 Yesterday, the 9th Circuit Court of Appeals rendered their judgement of the WEI appeal. But 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 BS."
As it turns out, the 9th Circuit Court of Appeals agreed. 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:
"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 legally) - I conclude that the 9th Circuit Court of Appeals disposition of the Wild Equity Institute Appeal can be distilled to: "Why are you wasting our time with this crap?" 

Why, indeed. 

Kudos and thanks 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. 

Mike Wallach
Fix Pacifica Foreign Correspondent
San Francisco Bureau
X-posted on my other blog


Wednesday, March 25, 2015

Wild Equity "Snake Bit" in its latest attempt to shut down Sharp Park Golf Course


I just got a couple of emails stating the following -

The Ninth Circuit Court of Appeal today (3.25) dismissed Wild Equity Institute’s appeal from the U.S. District Court’s Dec. 6, 2012 dismissal of Wild Equity’s Endangered Species Act lawsuit to halt golf at Sharp Park.  The opinion can be found on the 9th Circuit’s website, at the following link:

We will be awaiting Brent Plater's declaration of victory.

Posted by Steve Sinai

NIMBIES strike again, Highway 1 lawsuits continue


NIMBIES lose two (2) lawsuits. Now join with the Center for Biological Diversity to bring two (2) new lawsuits against seven (7) Government Agencies.

Pacifica Tribune/Jane Northrop, Staff Writer, 3/24/15.  "Caltrans noticed by environmental groups about alleged violations of federal laws."

Image result for NIMBIES block highway improvement picture
Gang of No don't need
no stinkin' Highway improvement,
or other City improvement.
No improvement and no tax.
Nothing period. And never to that.
"Pacificans for a Scenic Coast, Pacificans for Highway 1 Alternatives and the Center for Biological Diversity provided notice of their intent to file a citizen suit for violations of the U.S. Clean Water Act and the Endangered Species Act.  Caltrans is named a defendant in both.

"It also had to go to the city of Pacifica because the city is legally a 'necessary and indispensable party' to any decision in that lawsuit," said Peter Loeb, plaintiff representative. The San Mateo County Transportation Authority was named in that notice, as well. Besides Caltrans, the notice to sue for violations of the Endangered Species Act went to U.S. Dept. of the Interior, U.S. Fish and Wildlife Service, National Park Service, GGNRA and the Army Corps of Engineers.

....  "Caltrans posts in the Federal Register every road project they do in California and everyone knows about it. It's the law. It's a 'put up or shut up' rule. Loeb is saying Caltrans is trying to conceal something. That's not true. The opponents to Highway One are trying to see if they can torpedo the Highway 1 widening funding. They were hedging their bets on the loss of lawsuit number two. This was not a big surprise and it was part of their strategy," Mark Stechbart said.  Read article.

Related article - Pacifica Riptide/Peter Loeb, 3/24/15. "PSC & PH1A take legal action against Caltrans."  ... The 60-day notice of intent to sue for violations of the Endangered Species Act was sent to Caltrans, U.S. Department of the Interior, U.S. Fish and Wildlife Service, National Park Service, GGNRA, and Army Corps of Engineers." 7 Government Agencies.  "The 60-day notice of intent to sue for violations of the Clean Water Act was sent to Caltrans, San Mateo County Transportation Authority, and the City of Pacifica because the city is legally a "necessary and indispensable party" to any decision in that lawsuit."  3 Government Agencies.

Reference, US Govt Agency - Federal Register Daily Journal, 12/10/14. "Notice of Final Federal Agency Actions of Proposed Highway in California." .... "By this notice, the FHWA, on behalf of Caltrans, is advising the public of final agency actions subject to 23 U.S.C. 139(l)(1). A claim seeking judicial review of the Federal agency actions on the highway project will be barred unless the claim is filed on or before May 11, 2015. If the Federal law that authorizes judicial review of a claim provides a time period of less than 150 days for filing such claim, then that shorter time period still applies." 

Reference, the new plaintiff.   Center for Biological Diversity,  "Caltrans Watch, putting the breaks on Caltrans."  "The Center has organized a statewide coalition to take on irresponsible and damaging highway-widening projects around the state by the California Department of Transportation. The Caltrans Watch coalition aims to put the brakes on Caltrans’ wasteful spending, institutionalized disregard of environmental regulations designed to protect natural resources, and pattern of refusal to address local concerns. More than two dozen community and conservation groups are working to call attention to pervasive problems at Caltrans — including the agency’s refusal to consider reasonable alternatives to massive highway projects, shoddy environmental review, lack of transparency, reliance on flawed data and disregard for public input. The coalition is taking on five unnecessary highway-widening projects in Northern California with severe environmental impacts and a combined $350 million price tag: ....  The $50 million Calera Parkway project to double the width of Highway 1 in Pacifica, in San Mateo County, with impacts to endangered frogs and garter snakes."

Note graphic from David Smith's Blog, 7/31/13, "Affordable Housing Institute."  Graphic and captions by the poster.
The 60-day notice of intent to sue for violations of the Clean Water Act was sent to Caltrans, San Mateo County Transportation Authority, and the City of Pacifica because the city is legally a “necessary and indispensable party” to any decision in that lawsuit. - See more at: http://www.pacificariptide.com/pacifica_riptide/2015/03/on-march-5-2105-pacificans-for-a-scenic-coast-and-pacificans-for-highway-1-alternatives-sent-letters-of-intent-to-sue-caltr.html#sthash.SzW9tj7I.dpuf
The 60-day notice of intent to sue for violations of the Endangered Species Act was sent to Caltrans, U.S. Department of the Interior, U.S. Fish and Wildlife Service, National Park Service, GGNRA, and Army Corps of Engineers.

The 60-day notice of intent to sue for violations of the Clean Water Act was sent to Caltrans, San Mateo County Transportation Authority, and the City of Pacifica because the city is legally a “necessary and indispensable party” to any decision in that lawsuit. - See more at: http://www.pacificariptide.com/pacifica_riptide/2015/03/on-march-5-2105-pacificans-for-a-scenic-coast-and-pacificans-for-highway-1-alternatives-sent-letters-of-intent-to-sue-caltr.html#sthash.SzW9tj7I.dpuf

Submitted by Jim Wagner

Posted by Kathy Meeh

On the use of lawsuits for the purpose of delay


The new and improved  "spin" regarding new hwy 1 lawsuits, #3 (clean water) and #4 (endangered species). It's all part of the plan to continue to delay the Hwy 1 widening project, now over 30 years in the planning. Almost as bad as the actual commute traffic !

Opponents had to give notice they were considering a lawsuit. It's established law that CalTrans posts a federal statute of limitations notice in the Federal Register for ALL projects in Calif. Every enviro lawyer in the country knows this. It's a "put up or shut-up" notice. Any who watches TV cop shows knows about statute of limitations in legal matters. You have to make your claim and not string anyone along indefinitely. Although the opponents, with every imaginable last minute question, concocted alternatives and speculation about dark plots, does just that--string everyone along.

See www.federalregister.gov and search for "Caltrans", or "CalTrans statute of limitations" and you
will find dozens of listed projects statewide. 


The posting about Hwy 1 went up 12/10/2014.

 See:


Here's the opponents spin:

1) Barred by this statue from suing and this forced their hands. True-- a statute is designed to make sure litigation does not stretch out indefinably when project decisions have to be made. This cuts to the core of opponents strategy-- a project delayed is often a project denied, not on its merits but because funding has been lost, or the public gives up.

2. If Caltrans had not published its notice in the Federal Register, we may never have considered a federal suit. The Federal Register notice made us look at whether there was a reason that Caltrans would want to bar us from filing a federal suit.

This statement is totally false. All lawyers look at statute of limitation dates. It is routine and the posting is the law. CalTrans posts on ALL Calif projects. The reason opponents would be barred from filing a federal lawsuit is the statute sets a deadline. And the opponents are delay and lawsuit happy, doing everything they can to string the widening along. Not have considered a lawsuit? Ha !  That's all they do--dream up every imaginable lawsuit delay.

3. Another reason opponents filed both actions to notice a 60 lawsuit is they hedged their bets on a loss on lawsuit #2 in San Mateo Superior court on 3/10/15. Opponents seek any delay and any possible legal objection. Literally throwing objections against the wall to see what sticks.

In fact, opponents had both lawsuit notices 3 and 4 prepared and in the mail on March 5, five days before they knew they lost everything on lawsuit #2.

( Lawsuit #3 (clean water) mailed March 5; Lawsuit #4 (endangered species) mailed March 5. )

I would also imagine the writing of lawsuit 3 and 4 notices started a full month before the lawsuit 2 decision, sometime in February. Therefore any self-serving claim that opponents' hand was forced, they did not know what was going on, or the statute posting concealed law violations is patently false. The statute posting is routine (it was done for San Pedro Creek bridge replacement and that did not "conceal" anything)

Submitted by Jim Wagner

Tuesday, March 24, 2015

San Mateo County Transportation Authority Citizens Advisory Committee recruitment by Friday April 3, 2015


Hello all,  Please read the below information from the San Mateo County Transportation Authority in reference to its current recruitment efforts to fill openings on the San Mateo County Transportation Authority Citizens Advisory Committee. If you have any questions, please do not hesitate to contact me. Recruitment ends on April 3, 2015.
Image result for San Mateo County Transportation Authority picture
News

Barbara Arietta, Chair, San Mateo County Transportation Authority, CAC, 415-246-0775, email: barietta@hotmail.com

Transportation Authority Seeks Community Volunteers

The San Mateo County Transportation Authority is seeking five volunteers for its Citizens Advisory Committee (CAC).

A 15-member volunteer group, the CAC acts in an advisory capacity to the Transportation Authority’s Board of Directors, providing valuable input on the funds collected by Measure A and the projects and programs in the Transportation Expenditure Plan.

Image result for volunteers needed picture
15 volunteer Member Advisory, 5 positions available
Measure A is the ½-cent sales tax that San Mateo County voters approved for the use of transportation and infrastructure improvement projects. The Expenditure Plan includes Caltrain improvements, highway and street projects, paratransit service for people with disabilities, pedestrian and bike upgrades and other infrastructure projects in San Mateo County.

The committee meets the Tuesday before the first Thursday of the month at 4:30 p.m. in San Carlos. Members of the CAC must be residents of San Mateo County.

Interested persons can download an application from the Transportation Authority's website at http://www.smcta.com/about/cac/TA_CAC Online_Application.html or call 650-508-6223.  The deadline for submitting the application is April 3.
--------- 
Reference - San Mateo County Transportation Authority/About "Citizens Advisory Committee".  "About the TA: Created to administer Measure A, San Mateo County’s ½ cent sales tax, the Transportation Authority provides funding for transportation and infrastructure improvement projects. In 2004, more than 75 percent of San Mateo County residents voted to reauthorize Measure A for an additional 25 years."  (From Barbara's email).

Note.  Text: The above information is from an open email from Barbara Arietta. Graphics: SMCTA logo from Eventbright.com; volunteer hands from ppaction.

Posted by Kathy Meeh

Surfer's Beach erosion study continues


Image result for Surfer's Beach erosion Half Moon Bay, CA picture
6 years later, $1 million in studies:
erosion continues, and "its complicated".
Half Moon Bay Review/Mark Noack, 3/18/15.  "Cost of incomplete erosion study surpasses $1M".




  
"To many observers, the best way to halt erosion at Surfer’s Beach is obvious: Take the sand built up on the east end of Pillar Point Harbor and use it to nourish the depleted shore on the other side of the breakwater.

Since 2009, the U.S. Army Corps of Engineers has been studying this very idea with the hope to open up $5 million in federal funds to pay for it. Now, six years in, that analysis and environmental report remain incomplete, but their costs continue to mount.

This week, Army Corps officials reported they have spent more than $1 million so far on the erosion analysis, albeit with little to show the public as a result. Half of this expense is being covered by the San Mateo County Harbor District, which is acting as the local partner for the study.  .... Rather than wait, local officials have begun to look elsewhere for help. Harbor District officials have put forward Surfer’s Beach for a pilot program to study beach replenishment through the National Oceanic and Atmospheric Administration."   Read article.

Note photograph by Bill Murray, Half Moon Bay Review, 10/23/13. 

Posted by Kathy Meeh

State tax credits awarded to affordable housing, including Ocean View Senior Apartments

Image result for Ocean View Senior Apartments, Pacifica, CA picture
Off to the post office,
lite shopping, then Kenny's.

The Daily Journal/Bill Silverfarb, 3/23/15.  "San Mateo senior complex to get facelift."

Image result for Ocean View Senior Apartments, Pacifica, CA picture
555 Crespi Drive transfer from
from Pacifica to SM County.
Solvency, upgrades, otherwise what?
"The Edgewater Isle senior apartments in San Mateo earned a tax credit from the state for a major facelift that will temporarily displace the residents who live in the 92-unit complex.
OCEAN VIEW SENIOR APARTMENTS - PACIFICA, CA
There it is, gray building:
Sound of ocean, million dollar view.
California State Treasurer John Chiang announced last week that tax credits were awarded to 16 California projects, three in San Mateo County, to construct or preserve more than 1,800 affordable housing units across the state.

Tax credits were also awarded to the Ocean View Senior Apartments in Pacifica and 6800 Mission Family Housing Apartments in Daly City, according to Chiang’s office.

 ....  Currently, more than 34 percent of working renters pay more than 50 percent of their income toward housing, and the State Department of Housing and Community Development estimates that California needs to build 220,000 new homes a year to keep up with population growth, according to Chiang’s Office.  Read article.

Reference, the Pacifica Senior apartments -  Ocean View Senior apartments, 555 Crespi Drive, Pacifica, CA.


Reference, the Pacifica Senior apartments transfer to SM County - Fix Pacifica article reprint, City Council meeting, 3/9/15, Item 6. "Completion of Oceanview Apartments ownership transfer from City of Pacifica to CalHFA. Fiscal impact:  forgiveness of the remaining loan, approximately $950,000;and, reimbursement of City payments (with interest), approximately $350,000. Report and Resolution, pdf pages 9."  

Reference, the financing transfer to SM County - CalHFA/about, "For more than 35 years, the California Housing Finance Agency (CalHFA) has supported the needs of renters and homebuyers by providing financing and programs that create safe, decent and affordable housing opportunities for low to moderate income Californians. Established in 1975, CalHFA was chartered as the State's affordable housing bank to make low interest rate loans through the sale of tax-exempt bonds. CalHFA is a completely self-supporting State agency, and its bonds are repaid by revenues generated through mortgage loans, not taxpayer dollars." 

Note photographs.  Keys from Ocean View Senior apartments. Street view (555 Crespi Drive) from City Data. Walkway next to apartments face page of City Search from Google search.

Posted by Kathy Meeh

Reminder warning: big cats and other wild animals on trails too


San Francisco Chronicle/Erin Allday, 3/21/15.  "Mountain lion sighting up in San Mateo County."

Image result for Mt Lion San Mateo County picture
Thanks, just love these GGNRA trails!
"San Mateo County authorities are warning people to keep an eye out for mountain lions after noting an uptick in reported sightings and at least one death of a livestock animal — probably a llama — attributed to a big cat.  The llama death was reported earlier this month in Pescadero, near the 4900 block of Cloverdale Road, said Sgt. Joe Sheridan with the San Mateo County Sheriff’s Office. Since then, a resident reported seeing a mountain lion three times on his property on the 900 block of Miramontes Street in Half Moon Bay, Sheridan said.

The Half Moon Bay mountain lion probably isn’t the same one that killed the llama in Pescadero, but it’s not clear how many of the predators may be prowling around the area. All of the mountain lion sightings have been in rural, farmland areas, Sheridan said.

With mountain lions known to be roaming in the region, people should avoid hiking and running, especially alone, at dusk and dawn, when the animals are most active. If people see a mountain lion, they should not run but make a lot of noise and make themselves appear as big as possible." Read more.

Note:  photograph face page to Flickr groups/CA Wildlife pool. The photograph may have been taken by Georgia Stigall (who took similar to motion-sensor cam photographs).  

Posted by Kathy Meeh

Monday, March 23, 2015

Reminder City Council meeting, today, Monday, March 23, 2015

Image result for National Puppy Day
National Puppy Day, founded 2006

Attend in person, 2212 Beach Boulevard, 2nd floor.  Or, view on local television or live feed Pacificcoast.TV, (formerly pct26.com).  If you miss civic meetings, view on  PCT 26 You Tube!  The city council meeting begins at 7 p.m., or shortly there following.  City council updates and archives are available on the City website.  

City Council Meeting, 3/23/15, Fix Pacifica article.         City Council Agenda, 3/23/15 direct.

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Note photograph from Life with Dogs/TV dog news,3/23/12, "National Puppy Day: a celebration of cuteness." "According to its founder, 'National Puppy Day is a special day, recognized on March 23rd annually, to celebrate the magic and unconditional love that puppies bring to our lives. But more importantly, it’s a day to help save orphaned puppies across the globe and educate the public about the horrors of puppy mills, as well as further the mission for a nation of puppy-free pet stores.' ”

Posted by Kathy Meeh