Pacifica Tribune: Sharp Park Sea Wall OK'd Coastal Commission: Managed Retreat is Not Feasible

The headline in the 11-22-2017 Pacifica Tribune last week tells the story: "Sharp Park sea wall OK'd". I'd link to the story itself, but either they have not posted it on-line or I can't figure out how to find it. The article is a good summary of the recent California Coastal Commission decision granting a permit to the City of San Francisco to maintain and improve the Sharp Park sea wall. Some excerpts:

"The California Coastal Commission, recognizing the importance of the Sharp Park Sea Wall in protecting both Pacifica's historic golf course and the adjacent neighborhoods, has approved a permit to preserve and maintain the structure, including it's rip-rap armoring... 

Commission Chair Dayna Bochco... asked Commission staff what would be the likelihood of the surrounding neighborhoods being flooded without the protection of the sea wall. District Director Dan Carl said, "It's a 100 percent certainty if the berm wasn't there... you would open up a whole new can of worms with respect to Highway One and the residential neighborhoods surrounding the golf course"...  

The sea wall created a fresh-water habitat in the Laguna Salada and surrounding wetlands which are now home to two species protected under the EPA."

For anyone with a lick of common sense, this seemed an obvious outcome. You need only to look at what the Sharp Park sea wall protects:

The choice is simple - either maintain the sea wall, or play Russian roulette every winter waiting for an El Nino bullet to:

• Flood Pacifica neighborhoods
• Flood Highway One
• Salt poison the managed freshwater habitat of  Laguna Salada - home to the endangered California Red Legged Frog and San Francisco Garter Snake
• Flood the affordable recreational resource and important historic public golf course - Alister MacKenzie's Sharp Park masterpiece. 

The Coastal Commission decision was made, but San Francisco Rec & Park repair and reinforcing work of the sea wall is yet to begin. The consequences of a breach would be devastating to the community, endangered species, and Pacifica civic fiscal fortunes. To borrow a phrase: Winter is Coming.

We got lucky last year. The Pacific storm bullets are loaded in the chamber and the cylinder is spinning. Any Pacificans in favor of sea wall work starting before old man winter pulls the trigger might want to attend the Monday November 27 Pacifica City Council meeting and comment on Item 11:

"11.   Resolution supporting the City and County of San Francisco for Sharp Park Golf Course facility berm and maintenance repair and improvements, and incorporating flood mitigation, report, resolution."

It should be an easy decision - right?  Well, it should've been an easy decision for the Coastal Commission, yet 3 of the 12 Commissioners argued against granting the permit. The Pacifica City Council should send a strong, clear message to San Francisco stressing the importance and urgency of maintaining the berm now.

This is not a hypothetical concern. We know what will happen if  the sea wall is breached. We know because it happened before. The smaller un-reinforced berm that preceded the existing structure was over-topped by the 1982-83 El Nino storms. We know the population of endangered California Red-Legged frogs living in the managed fresh water Laguna Salada habitat was devastated by the berm failure. In a "My Turn" letter published in the same Pacifica Tribune edition cited earlier, Pacifica resident Robine Runneals explains exactly what happened to neighborhoods:

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.

Butch already submitted the story, but - as usual, - I can't leave well enough alone. I'll repeat the lede but add a little color and save the punchline for the end.

Here's the story again:

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 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...

C.W. Nevius on WEI: "Losing a Lawsuit Can Mean Financial Gain"

On Saturday, San Francisco Chronicle columnist C.W. Nevius caught up to where Fix Pacifica readers were two years ago. His column succinctly updates, summarizes, and links to a post that appeared here and on my blog in February 2013.  Most Fix Pacifica readers are already pretty familiar with this issue, as it has been a frequent topic here. Still, it's good to see it covered in main stream media.  It is relevant now because, as Nevius notes and as we expected, WEI has already filed another lawsuit. 

Losing a Lawsuit Can Mean Financial Gain

By C.W. Nevius - July 10, 2015 

"Only the truest of true believers think the Wild Equity Institute is going to prevail in its quixotic quest to turn Sharp Park Golf Course into a nature park. It’s a pipe dream...  

No sooner had a suit for more environmental review been slapped down on May 28 than Plater filed another, the latest in what has turned into a five-year legal guerrilla action...  

But maybe there is a logic to this. It turns out that Plater and his organization can win by losing. Take the ruling in U.S. District Court on July 1, 2013, which, by any measure, rates as a legal smackdown of the institute. As Judge Susan Illston said in her ruling, “plaintiffs did not prevail on a single substantive motion before the Court... 

Illston was not impressed. In her ruling, she said the plaintiffs’ lack of success led “the Court to believe that a large majority of the time spent was ‘excessive, redundant, or otherwise unnecessary.’” What’s more, she wrote, “plaintiffs failed to satisfactorily explain why Glitzenstein and Crystal, at $700 an hour or greater, spent so much time on this case. Most of the issues in this case were not complex. Yet the Washington, D.C., attorneys account for half of the attorney hours spent on the case.” 

So, you assume, that was the end of that. The institute didn’t win and the judge thinks the fees are excessive. Not so fast. Illston cut the amount, but still awarded $385,809, paid by San Francisco. A tidy sum for a losing effort.  

Blogger and “enthusiastic but bad golfer” Mike Wallach was one of the first to pick up on this. In his blog, MW Mobile Blog, he created a post in 2013 headlined, “Why Sharp Park lawsuits will never end: We pay them to sue us.”

Thanks C.W. Better late than never.

The post referenced in the Nevius column appeared in Fix Pacifca February 12, 2013 and is linked here.

A subsequent follow-up post on the same subject from April 17,2013 is linked here.

Mike Wallach
Fix Pacifica Foreign Correspondent
San Francisco Bureau
X-posted on MW Mobile Blog

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

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

SFPGA PRESS RELEASE: Ninth Circuit Court Hears Appeal In Sharp Park Golf Course Case

From the San Francisco Public Golf Alliance, a more succinct and restrained recounting of the Wednesday appeal in Federal Court than my earlier screed.

+++

NINTH CIRCUIT COURT HEARS APPEAL IN SHARP PARK GOLF COURSE CASE

San Francisco, CA., March 11, 2015 

  

Sharp Park Golf Course – the 83-year-old public masterpiece of famed golf architect Alister MacKenzie – was the subject of oral argument Wednesday, March 11 at the United States Court of Appeals for the Ninth Circuit, in the matter of Wild Equity vs. City and County of San Francisco.  

Filed in March, 2011 by a handful of environmental groups led by San Francisco-based Wild Equity Institute, the lawsuit sought an injunction to close the course based on allegations that golf operations kill frogs and snakes protected under the Federal Endangered Species Act. 

In December, 2012, U.S. District Court Judge Susan Illston dismissed the case after the U.S. Fish & Wildlife Service issued a Biological Opinion and Incidental Take Statement imposing strict protective terms and conditions on golf operations, but allowing “take” of a small number of frogs and snakes provided that the City complies with those terms and conditions. Judge Illston ruled that the U.S. Fish & Wildlife Service’s action rendered the lawsuit moot.  

At oral argument on March 11, the Court focused its attention on the fact that the Army Corps of Engineers had incorporated the terms and conditions of the Biological Opinion and Incidental Take Statement in a Clean Water Act permit, further rendering moot the environmental groups’ claims. The environmental groups’ attorney attempted to explain to Court of Appeal Judges William Fletcher, Morgan Christen, and Andre Davis that this case should come within the narrow “capable of repetition yet evading review” exception to the mootness doctrine, in an effort to keep their claims alive. Appearing for the City and County of San Francisco was Deputy City Attorney Jim Emery. Joseph Palmore, co-chair of Morrison & Foerster’s Appellate and Supreme Court Practice Group, argued the case for Intervenor San Francisco Public Golf Alliance.  

Following a half-hour of oral argument, the Judges took the matter under submission.  No date was set for the Court to issue its written opinion. A video of the Court proceedings can be found at:  https://www.youtube.com/watch?v=Ukp1m8IWl8o. 

Contact:

Richard Harris, Richard@erskinetulley.com, 415-290-5718

Bo Links, bo@slotelaw.com, 415-393-8099

The San Francisco Public Golf Alliance continues to do great work in support of our much loved public courses. You can help by "friending" and "following" SFPGA on Facebook, Twitter, LinkedIn, Instagram, and of course - playing in the Fourth Annual Alister MacKenzie Tournament for Sharp Park.


Mike Wallach
Fix Pacifica Foreign Correspondent
San Francisco Bureau
X-posted from SFPGA Website

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.

Dispatch from 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 WEI press release 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.

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. I'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.  Briefs are being filed, and the case will be argued in federal court on May 10.  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) and 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 they are attempting to replicate the CBD litigation fee reimbursement treasure hunt here in the Bay Area. Think of it as opening a lucrative local franchise for an ambitious environmental litigator.  But we covered that ground before. 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.

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 Alister Mackenzie public golf course - Sharp Park.  This led some to wonder whether the long running Battle for Sharp Park might finally be over.

Spoiler alert: No.

 I've weighed in on this story before, both here and on my blog, and 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 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" - which was 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 are we really talking about?

The recent Sharp Park motion 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 specified 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 continues up through January 2013 when an appeal was filed for the dismissed case. That amount 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 that were secured as a consequence of his leadership role in WEI back into WEI in order to continue its work.  That is what any committed leader would do. He would, of course, continue to draw a salary commensurate with the success and non-profit nature of the organization.This seems sensible, if for no other reason but to avoid the appearance of a conflict of interest with the organization he runs. Where IRS reports are available, he has taken 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.  The 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 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...

Sharp Park legal victory for San Francisco and Pacifica

The Wildly Equitable Biodiverse Litigants for Ecological Extortion and Deep Untruths (WEBLEEDU) just lost another battle in the Sharp Park Golf War.

The San Francisco Public Golf Alliance has the story:

"Federal Judge Susan Illston today issued an Order Denying Plaintiffs' Motion for a Preliminary Injunction at Sharp Park Golf Course. The plaintiffs, "a collection of non-profit conservation groups" led by the Tucson-based Center for Biological Diversity, had sought an order to halt mowing on Holes 9-18 and to halt winter flood-relief pumping at the 80-year-old golf course. Noted architect Robert Trent Jones, Jr. submitted a declaration to Court, saying that if granted, the relief sought by the plaintiffs would effectively mean destruction of the Alister MacKenzie-designed course.

In a 15-page ruling, Judge Illston said she denied the motion because she found that the plaintiffs "failed to establish the likelihood of irreparable harm" to the California red-legged frog or the San Francisco garter snake. Judge Illston, a veteran Federal Judge who last year presided at the Barry Bonds case, heard oral arguments in the Sharp Park case on November 18. Trial in the case is scheduled for July 16, 2012.

To read a copy of Judge Illston's opinion, click here [PDF]."

For those keeping score:

• WEBLEEDU failed to elect SF Supervisor John Avalos mayor of San Francisco, after he cravenly secured their support by promising to give away 400 acres of beautiful coastal park land that belongs to the people of San Francisco (I know. Really. Only in EssEff.)
• WEBLEEDU failed to make the scientific case to close Sharp Park based on a specious threat to endangered species who have thrived at the park since it was created over 70 years ago.
• WEBLEEDU failed to close the park by promoting false and misleading statement about the financial status and popularity of golf at the park.
• WEBLEEDU failed (thus far) to intimidate The City into closing the course with threats of patently absurd and pointless lawsuits.
• WEBLEEDU failed to stop the funding of a job-creating, stimulus-subsidized, PUC-sponsored, cities of San Francisco and Pacifica supported project to bring recycled water to supply the course (Yes - this coalition of ostensible "environmentalists" were really fighting to stop a project to use recycled water instead of potable Hetch-Hetchy reservoir water at Sharp Park.)

With the latest win, by my count, the current score:

People of SF and Pacifica - 6
WEBLEEDU Axis - 0

Of course, this latest decision is only the most recent skirmish in a series of legal battles. That's ok. We may have a lot of problems in the City, but a shortage of really good lawyers is not one of them. No judge is going to rule to close a historically important landmark golf course in the face of a good faith plan to enhance the habitat for protected species that is sponsored by the most environmentally progressive City government in the country. It is purely an intimidation and EAJA compensation ploy. That's what WEBLEEDU does - environmental bullying of cash strapped municipalities. The City must stand up to them, and so far we have done exactly that.

They will lose the legal battle. Less predictable in San Francisco is what happens on the political front. The next political battle starts this Monday December 5th in a public hearing with the City Operations and Neighborhood Services Committee to discuss Supervisor Avalos' ordinance to give away Sharp Park.

The WEBLEEDU's will be there in force. Any Pacifica or San Francisco citizen interested in protecting this landmark city treasure should be there too. As I've said before:

"John Avalos is advocating giving Sharp Park away to the federal government. This is political suicide, or should be. Where else in the world could a politician run for mayor on a platform of giving away 400 acres of incredibly valuable and beautiful coastal park land that contributes millions in revenue to the city and belongs to the people of that city?

Sharp Park is a unique gem that belongs to the people of San Francisco. We choose to share our park with the Bay Area and the world.

The 80-acre golf course was designed and built by Alister MacKenzie, the game's most important architect. The 400-acre park itself was landscaped by John McLaren, the godfather of San Francisco parks. The park was a gift to the city in 1917 and represents a historic legacy entrusted to the people of San Francisco. The park and golf course are important historic landmarks by any standard.

This civic jewel of a park is a treasure that is our common San Francisco heritage and is a legacy for us to leave to future generations of San Franciscans.

Unless some clueless politician manages to give it away."

Cross Posted from MW Mobile Blog.
UPDATE: Fixed link


Mike Wallach
Fix Pacifica Foreign Correspondent
San Francisco Bureau

First Annual Pacifica Chamber of Commerce Golf Tournament 10/17/2011

Calling all golfers!!! Please click the link below for the First Annual Pacifica Chamber of Commerce Golf Tournament.

http://business.pacificachamber.com/events/details/1st-annual-4-man-best-ball-golf-tournament

The tournament will be held at Sharp Park on Monday October 17. Proceeds will be benefit the fight to Save Sharp Park and the SF Golf Alliance.

The format is a 4 Person Scramble.

The $150.00 per player entry fee includes:

Golf
Lunch
Beverages during golf
Dinner at Sharp Park

There will be many prizes awarded and a few special guests offering prizes during golf.

This is a don't miss event!!! Make up your own foursome or sign up as a single. We will find a group for you.

Hope to see you there!!!

SF Chronicle Letter to the Editor - Giving away the family jewels.

For regular readers this is going to be a bit repetitive. You've seen something similar from me here before. But since it made the cut with the local fish wrap, you get to see it again:

San Francisco Chronicle - Letters to the Editor - May 21, 2011

Give away a civic jewel?

"John Avalos is really advocating giving Sharp Park away to the federal government ("Hitting the rough," City Insider, May 19)?

This is political suicide, or should be.

Where else in the world could a politician run for mayor on a platform of giving away 400 acres of incredibly valuable and beautiful coastal park land that contributes millions in revenue to the city and belongs to the people of that city?

Sharp Park is a unique gem that belongs to the people of San Francisco. We choose to share our park with the entire Bay Area and the world.

The 80-acre golf course was designed and built by Alister MacKenzie, the game's most important architect. The 400-acre park itself was landscaped by John McLaren, the godfather of San Francisco parks. The park was a gift to the city in 1917 and represents a historic legacy entrusted to the people of San Francisco. The park and golf course are important historic landmarks by any standard.

This civic jewel of a park is a treasure that is our common San Francisco heritage and is a legacy for us to leave to future generations of San Franciscans.

Unless some clueless politician manages to give it away."

Mike Wallach, San Francisco

More on Wannabe-Mayor Avalos and the rally that motivated my letter linked here.

"The only reason for the existence of golf and other games is that they promote the health, pleasure, and even the prosperity of the community... With the exception of ignorant politicians who, with a few notable exceptions, appear to desire to tax golf course and playing fields out of existence, most people know that golf and other games promote the health and happiness of the community..."

- Alister MacKenzie - The Spirit of St. Andrew - 1933

cross-posted at MW Mobile Blog

The "Destroy Sharp Park and Give it to the Feds" Rally

I have not posted here in a while. Frankly, I thought the Sharp Park kerfuffle would have died down after those who would destroy the course lost on so many political and scientific fronts. In retrospect I was naive.

Why should they quit? As taxpayers we pay them to sue us. If the Center for Biological Diversity alums that founded the Wild Equity Institute use the same model as the CBD, they will also submit their legal billable hours suing San Francisco to the Department of Justice to be reimbursed under the Equal Access to Justice Act. The more billable hours they document, the more we the taxpayers will pay them. Since we as taxpayers keep paying, they'll keep suing. Sure - the $125/hour or so they are reimbursed for suing us is well below what most private lawyers make, but OTOH it is a hell of a lot more than most environmentalists make.

To paraphrase a famous movie line - "I thought I was out..." but with back to back rallies by the supporters and opponents of the course, "they pulled me back in". I attended both the Save Sharp Park rally in Pacifica on Thursday and the "Destroy Sharp Park" rally at City Hall in San Francisco on Friday. My take on the Pacifica rally is linked on my blog, but thought I would amplify a bit on Steve's excellent and succinct coverage of the SF rally here.

WEI is claiming that there were over 100 attendees at their rally. I think they must have been counting the people driving by in their cars on Polk Street during the event.

Not a bad crowd. Smaller than the "Save Sharp Park Rally", but...

...almost as big as the crowd attracted to the lunch wagons just on the other side of Civic Center Plaza.

Brent Plater led the rally as MC and featured the usual misrepresentations and half-truths. Here some clips from rally supplemented with a bit of video editorializing:


The clips are not very good quality but hopefully you can hear what Brent is saying. For anyone following this story over the last 3 years, no surprises. The same tired claims about Sharp Park that have been factually refuted by scientists, local leaders, financial analysts, and Rec & Park management. On the plus side, since there is nothing new, I reused some of the same clips I've accumulated over that time to debunk the same old nonsense.

There was one new element at the rally. Plater introduced Supervisor John Avalos, who is among the multitude running for Mayor of San Francisco.

In his short speech the city supervisor wondered aloud whether advocating the destruction of Sharp Park is good or bad for his candidacy. Gee... That's a tough one.

Let's think this through... We have 400 acres of beautiful, valuable coastal parkland that was a gift to the people of San Francisco, belongs to the people of San Francisco, is a 100 year old legacy of the people of San Francisco, is enjoyed by tens of thousands of visitors every year and contributes 50,000+ green fees per year to city coffers. And Supervisor Avalos thinks the right thing to do is just give it away to the Federal Government. Yeah... I'm pretty sure that is exactly the kind of vision my fellow City residents want to see in their next mayor.

I'll be comparing our mayoral candidates positions on Sharp in a future post. In the meantime, John - try this on for size:


Cross-posted from MW Mobile Blog

More Sharp Park news

Here is a link to a nice article about the annual Riley Senior Swingers Golf Tournament.

http://beyondchron.org/news/index.php?itemid=8275

Dispatches from the SF Golf War - The Sharp Park Budget Debate A Fair and Balanced Report

Early last week your San Francisco Foreign Correspondent joined the SF Public Golf Alliance and a strong Pacifica contingent to participate in the public comment portion of the San Francisco Budget and Finance Committee Meeting. Lines formed down the hall and around the corner in City Hall. We were asked to assemble by interest group, given alphabetical "tickets" and guidance on when we might expect to gain entrance to the committee room.

They started with the letter "A", we were in group "M", and we were told to expect to wait at least four hours. It turned out to be pretty accurate. It still took another hour after we entered the chambers to get our allocated two minutes in front of the budget committee and, believe it or not, some of us waited around to hear the opposition (who were even further back in the line).

Most everyone in line was there to defend their financial turf, demanding that their particular slice of the shrinking San Francisco pie not be touched. As near as I can tell, the golfers were the only ones at the meeting not asking for money, ready and willing to pay higher fees in order to help with the budget crisis and help Sharp Park.

It was heartbreaking to listen to the some of the disadvantaged who will be affected by the cuts coming in the San Francisco budget. The reality is the money is simply not there. The years of reckless spending by a fiscally irresponsible Board of Supervisors voted into office by politically irresponsible San Francisco voters are coming home to roost.

Hanging around City Hall for five hours, one has the opportunity to reflect on just WTF one is doing there. The simple answer is that we were there because the opposition was there to demand the closure of Sharp Park golf. It's not like there is any rational financial case to be made for closing the course, but having lost the scientific argument for the endangered frog and snake, I guess they have nowhere else to go. After they lose this one, I expect the lawsuit threats will start again.

Sharp Park Golf - profitable, popular, and subsidizing San Francisco salaries and services.

As indicated in a recent post, the Tucson based Center for Biological Diversity, and the Wild Equity Institute (founded by ex-CBD staff attorney Brent Plater), are actively engaged in a disinformation campaign about the finances, popularity, and historical importance of the landmark Sharp Park golf course. This is apparently an effort to con the people of San Francisco into giving away 400 acres of valuable coastal park land that was a gift to the people of San Francisco.

This post is an attempt to explain the financial reality of Sharp Park Golf in terms that even a journalist might understand.

The Arithmetic Explanation
This is a simple math problem. If you can do 3rd grade arithmetic, you can understand that green fees from Sharp Park subsidize San Francisco government salaries and services and The City is not subsidizing the course as claimed by those who would destroy the course.

In round numbers, Sharp Park operational revenues exceed expenses by about $100,000. The City of San Francisco charges Sharp Park $200,000 in overhead charges that are used to fund non-golf related SF government salaries and services. On an accounting basis, Sharp Park then looks like it is suffering a $100,000 loss. But, if Sharp Park was to disappear, the $200,000 in overhead expenses would still exist in San Francisco and the shortfall from Sharp Park would have to be made up by higher taxes or cutting salaries and services. It is pretty simple really.

But some people (see Destroy Sharp Park Golf Advocates) do not trust arithmetic. So as a supplement - I offer a couple of other explanations.

Phil Ginsburg's Explanation
Phil Ginsburg is the new Director of San Francisco's Recreation and Parks Department. Phil Ginsburg explains it to Supervisor Ross Mirkarimi during the Audit and Oversight Committee meeting chaired by the Supervisor on 12/16/09: