Sharp Park Golf Course lawsuit decision

Pacifica Tribune/Opinion Editorial, 7/10/13. "Golf Course decision" by  Paul Slavin 

And you thought the lawsuit was about endangered species, really?

          "As was expected, U.S. District Judge Susan Illston last week awarded compensation to the plaintiff’s attorneys who sought the closure of Sharp Park Golf Course in Wild Equity Institute, Center for Biological Diversity, et al, v. City and County of San Francisco, et al.  And, as was also expected, Brent Plater, executive director of Wild Equity and plaintiffs’ lead attorney, responded to the news with a wildly misleading and inaccurate press release. 
          The payment in question was mandated by the language of the Endangered Species Act (ESA) which, according to one interpretation, “was meant to expand the class of parties eligible for fee awards from prevailing parties to partially prevailing parties – parties achieving some success, even if not major success.” So just how successful was Wild Equity, et al?
          After years of snooping around the golf course, bemoaning the brutal regime of jack-booted golfers and threatening a legal Armageddon, the best case that Wild Equity could come up with was the complaint that course operations at Sharp Park were occasionally stranding frog eggs without a permit. To make a long story short, San Francisco applied for, and was granted the required authorization by the Fish & Wildlife Service (FWS), plaintiff’s complaint was deemed moot, and the case was dismissed. As the Judge observed in her order, little has changed on the ground as a result of plaintiffs’ complaint. 

          Wild Equity Institute, et al, then filed an appeal to the verdict and a motion for payment of attorneys’ fees and costs totaling $1,365,809. To be eligible they had to show a “causal relationship” between the desired outcome and the lawsuit. That is, some indication that San Francisco obtained the FWS permit because of pressure, of whatever degree, brought by the plaintiffs’ suit. The court decided that the lawsuit had just enough effect on the defendants to satisfy the ESA’s minimal guidelines, and plaintiffs were thus eligible to receive some amount of payment. 
          A partial breakdown of the bill presented to the court by the plaintiffs’ attorneys looks like this: 

          Eric Glitzenstein: 282.75 hours at $750 per hour

          Howard Crystal: 844 hours at $700 per hour

          Brent Plater: 857.7 hours at (a modest) $550 per hour

          Plus 2 junior attorneys at less than $300 per hour and paralegals
          Judge Illston has the authority, and the responsibility, to reduce fee requests she deems inflated or unwarranted, and apparently she found both in this case. She notes in her order that although “they gained their desired outcome, plaintiffs did not prevail on a single (her emphasis) substantive motion before the Court.” That spectacular failure rate “leads the Court to believe that a large majority of the time spent was excessive, redundant or otherwise unnecessary.”
          The Judge was also concerned that, in a case where the issues were not particularly complex, the higher-priced attorneys spent so much time and the relatively inexpensive junior associates spent so little. The court’s ruling noted, “this grossly inefficient allocation of resources seems unwarranted by this simple ESA action."
          The court also weighed the hours expended against the level of success achieved, and again the plaintiffs come up short. “At oral argument,” Judge Illston writes, “plaintiffs conceded that defendants’ FWS authorization would likely have happened eventually, but plaintiffs’ suit caused it to happen sooner. Thus, when looking at the larger picture, little seems to have been gained by plaintiffs, except this extra time.”

          The $1,306,400 request for attorneys’ fees was reduced by three-quarters, to $326,600. That’s 25 cents on the dollar. Not the bonanza they had hoped for, but then, not a bad payday for a law team that Judge Illston apparently did not consider among the sharpest knives in the drawer.

  Despite this dismal reckoning, Plater’s Wild Equity Institute issued a stirring press release headlined (here it comes) “Conservationists Win Lawsuit.” They did no such thing. The lawsuit was dismissed. The press release goes on to say that the Judge found that the conservationists “prevailed” in a lawsuit against S.F. Rec & Parks. The quotation marks around “prevailed” indicate that this is a direct quote from Judge Illston. I have carefully read her 9 page “Order Granting In Part Plaintiffs’ Motion For Attorneys’ Fees And Costs” and I don’t see anything close to that. (Perhaps Mr. Plater would advise me of the page and line.) I’m no lawyer, but isn’t there a difference between having a motion (partially) granted and prevailing in a lawsuit?

          The press release goes on to state that the Judge “ordered the golf course to pay $386,000 for illegally killing endangered species.” This implies that Sharp Park was found guilty of something and was forced to pay damages. That, again, is simply not true. (You can see why lawyer Plater had such an unsuccessful time in court, where it’s a lot harder to get away with stuff like that.) As clearly stated above, the Judge ordered the payment to plaintiffs’ attorneys for (dubious) services rendered and certainly not as a fine for “illegally killing endangered species.”

  But it’s Plater’s next line in the press release that really leaves me baffled: “We look forward to working with the City to implement today’s order…” Does he mean to orchestrate the transfer of $386,000 to Glitzenstein, Crystal, associates, paralegals and himself? That’s all that “today’s order” encompasses. If he could do it in cash, on the steps of City Hall, that might be worth some headlines. But he continues, “..and craft a new public park at Sharp Park everyone can enjoy – even endangered wildlife.” I’ll save my response to that for next week." 

Submitted by Paul Slavin

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Related article - Pacifica Tribune, 7/10/13, "Judge awards attorney fees in Sharp Park Golf Course lawsuit."  Note:  Permission to print the full text was received from Paul Slavin, author.  The electronic version of this article was not available on the Pacifica Tribune website at the time of this reprint posting.  Note:  Graphic from LifePoint.

Posted by Kathy Meeh