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