To be moot or not to be moot. That is the Sharp Park lawsuit 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 CBD 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.

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 an overview of the proceedings on the San Francisco Public Golf Alliance website or, if you have 30 minutes to kill, watch the entire hearing in this video, where you can enjoy hearing terminology like "Mootness Doctrine", "mootiness", "double moot" and "moot squared" :


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 BS.


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 BS.

Interestingly enough, the lawyers for the City and the SFPGA seem to 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. B.S.

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

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