Mar 262015
 

The Ninth Circuit has dismissed as moot a challenge to the operations of Sharp Park golf course in the city of San Francisco (Wild Equity Institute v. City and County of San Francisco, 13-15046).

"Wild Equity argued on appeal that the [Incidental Take Statement] 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," the court said in a memorandum opinion issued yesterday (March 25, 2015).

Wild Equity argued "that the capable of repetition yet evading review exception to mootness applies," but the court said that "[t]he issuance of the ITS and CWA permit have . . . fundamentally changed the legal landscape within which the parties are operating, reducing the likelihood that this issue will arise again between these particular parties."

Coverage from Nossaman LLP

Previous appeals court decision

Nov 302011
 

U.S. District Judge Susan Illston has rejected environmental groups' request for an injunction to stop certain activities at a public park in San Mateo County, California, because of the impacts on two federally listed species -- the threatened California red-legged frog and the endangered San Francisco garter snake (Wild Equity Institute v. City and County of San Francisco, 11-958 SI, N.D. Cal.).

S.F. garter snake (Photo by Sue Gardner)

The plaintiffs said they would continue to trial (scheduled for May 2012) in their fight to halt water pumping and restrict golf course operations. (See their press release, reprinted below.)

Here is the San Francisco Public Golf Alliance's opposition to the motion for a preliminary injunction.

In her Nov. 29 order, Illston said the plaintiffs had not shown "irreparable harm" to the species, a necessary test for obtaining a preliminary injunction.

"The plaintiff may be simply assuming that the death of any listed animal, or any of its eggs, constitutes irreparable harm for purposes of issuing a preliminary injunction," Illston said. "However, the law does not go quite so far. No court has held that as a matter of law, the taking of a single animal or egg, no matter the circumstance, constitutes irreparable harm."

Here is the relevant portion of her order:

Plaintiffs argue that this means that in the context of the ESA, "under Supreme Court and Circuit precedent, so long as it is likely that ongoing, illegal -- and especially, as here, lethal -- take will occur, injunctive relief to address that take must be crafted, because Congress has afforded listed species the ‘highest of priorities,' and has eliminated the equitable balancing otherwise required." Pl.'s Mot. at 21 (citing TVA v. Hill, 437 U.S. 153, 194 (1978)). In other words, according to plaintiffs, they need only show that defendants' activities are likely to cause take of a listed species. Pls.’ Mot. at 21. Plaintiffs make no mention of the requirement of showing irreparable harm absent injunctive relief in their moving papers.

However, "even in the Ninth Circuit, plaintiffs ‘must establish the likelihood of irreparable harm in the future.'" ABA Section of Environment, Energy, and Resources, "Endangered Species Act," 172 (Donald Baur et al., eds., 2nd ed. 2010) (citing National Wildlife Federation v. Burlington Northern R.R., Inc., 23 F.3d 1508, 1511 (9th Cir. 1994)); see also Defenders of Wildlife v. Salazar, 2009 U.S. Dist. Lexis 131058, *6 (D. Mt. 2009) (although plaintiffs likely to succeed on the merits that delisting wolves violated the ESA, they failed to show irreparable harm to the wolf population, instead of individual wolves). In support of their proposed legal standard, plaintiffs rely on a variety of cases that grant permanent injunctive relief, not preliminary injunctive relief. See Pls.’ Mot. at 21; citing Marbled Murrelet, 83 F.3d at 1067 (affirming permanent injunction upon finding that "implementation of Pacific Lumber's harvesting plan would likely harm marbled murrelets"); Ctr. for Biological Diversity v. Marina Point Development Associates, 434 F. Supp. 2d. 789, 795 (C.D. Cal. 2006) (granting permanent injunction against developer); Animal Protection Institute v. Holsten, 541 F.Supp. 2d 1073, 1081 (D. Minn. 2008) (issuing injunction on summary judgment where the "Court finds it likely that additional takings may occur unless further regulations are implemented.") Plaintiffs might be correct that at the final judgment stage, they need only show the likelihood of future take of a protected species to warrant injunctive relief. However, that question is not before the Court; instead, plaintiffs seek the extraordinary remedy of a preliminary injunction. Plaintiffs provide no support that the issuance of a preliminary relief should occur absent a showing of irreparable harm.

The plaintiff may be simply assuming that the death of any listed animal, or any of its eggs, constitutes irreparable harm for purposes of issuing a preliminary injunction. However, the law does not go quite so far. No court has held that as a matter of law, the taking of a single animal or egg, no matter the circumstance, constitutes irreparable harm. See Animal Welfare Inst. v. Martin, 588 F. Supp. 2d 70, 109 (D. Me. 2008); Alabama v. U.S. Army Corps of Engineers, 441 F. Supp. 2d 1123, 1135-36 (N.D. Al. 2006) (collecting opinions); Defenders of Wildlife, 2009 U.S. Dist. LEXIS 131058 at *14 ("[T]o consider any taking of a listed species as irreparable harm would produce an irrational result" because the ESA allows for incidental take permits.) The court in Pacific Coast Federation of Fisherman's Association v. Gutierrez, 606 F. Supp. 2d 1195 (E.D. Ca. 2008) (Wanger, J.), considered the types of harms that a plaintiff must show to demonstrate a reasonable likelihood of irreparable harm in the Ninth Circuit. The Gutierrez court noted that the standard does not require a showing of likely “extirpation” of the species, id. at 1207, but rather considers whether the action sought to be enjoined “will reduce appreciably [the species’] likelihood of survival or recovery or appreciably diminish the value of their critical habitat.” Id. (citing National Wildlife Federation v. National Marine Fisheries Service, 524 F.3d 917, 931 (9th Cir. 2007)). The court accepted the FWS’ definition of “appreciably diminish” to mean “considerably reduce.” Id. at 1208 (citing USFWS/NMFS, ESA Section 7 Consultation Handbook (March 1998), at 4-34).

In sum, the plaintiffs must demonstrate both that they are likely to succeed on the merits of their claim, and demonstrate that there will be a reasonable likelihood of irreparable harm absent injunctive relief.

More from the order:

On September 23, 2011, plaintiffs filed a motion requesting a preliminary injunction to halt defendants’ water pumping activities at Sharp Park, as well as its lawn mower and golf cart usage on holes 9 through 18 of the Sharp Park Golf Course.

Plaintiffs, a collection of non-profit conservation groups, filed suit against the City and its officials for violation of the Endangered Species Act. Plaintiffs allege that defendants' operations and activities at Sharp Park Golf Course have caused the “taking” of the threatened Californian red-legged frog and the endangered San Francisco garter snake and that therefore, defendants should have obtained an Incidental Take Permit ("ITP") pursuant to Section 10 of the ESA, 16 U.S.C. § 1539(a)(1)(B).  Specifically, plaintiffs contend that defendants' water management at Sharp Park has exposed frog egg masses to the air, causing fatal desiccation of the egg masses, thereby reducing the frog population. Plaintiffs also claim that other golf course operation activities -- lawn mowing and golf cart usage -- harm the Snake and Frog by running them over. Along with other relief, plaintiffs seek a declaration that defendants are violating the ESA by illegally taking the Frog and the Snake without an ITP, and an injunction against defendants to prevent ongoing activities allegedly causing take. Defendant City owns and operates the park; the Court allowed the SFPGA to intervene as a defendant in this action as well.

PRESS RELEASE BY ENVIRONMENTAL PLAINTIFFS

For Immediate Release, November 30, 2011

Contact:   

Brent Plater, Wild Equity Institute, (415) 572-6989
Jeff Miller, Center for Biological Diversity, (415) 669-7357
Michelle Myers, Sierra Club, San Francisco Bay Chapter, (415)-646-6930

Lawsuit Over Sharp Park Golf Course Harm to Endangered Species Will Continue to Trial

Judge Denies Temporary Emergency Protections for Endangered Species

SAN FRANCISCO— A federal district court judge has denied a request for an immediate injunction against golf-course operations documented to kill and harm endangered species at Sharp Park in Pacifica. The court referred to a temporary injunction as “extraordinary relief,” and will wait until the scheduled trial next summer to consider measures to address the San Francisco Recreation and Parks Department’s pumping of water from wetlands where California red-legged frogs lay eggs and mowing of vegetation used by critically endangered San Francisco garter snakes.

“The judge did not think that immediate restrictions on the golf course are necessary and intends to address these matters at trial,” said Brent Plater, executive director of the Wild Equity Institute and legal counsel on the suit. “We are excited to go to trial and expect the judge to craft appropriate relief once she has heard the merits of the case.”

“It’s shameful that San Francisco intends to continue draining and mowing sensitive wetlands for another winter — you’d think the ‘green city’ would do right by its namesake endangered species,” said Jeff Miller, conservation advocate with the Center for Biological Diversity. “Because San Francisco garter snake numbers are so dangerously low, golf-course mismanagement that kills a single snake threatens the species as a whole.”

The interim ruling does not affect the ongoing lawsuit filed by conservation groups over the Parks Department’s documented killing of endangered species. Although the court declined immediate relief, it is reserving judgment on the merits of the lawsuit until trial, which begins in July 2012. The Parks Department has no viable plan to comply with the Endangered Species Act or adequately protect endangered species.

"Though we are saddened there will be another season where harm will fall on these fragile creatures, we are confident in our ability to make a strong case for protection of both species in trial,” said Michelle Myers of the Sierra Club.

The judge ruled conservation groups did not show irreparable harm would occur before the case is resolved at trial. Although San Francisco does not deny golf-course operations harm endangered species and the city lacks required permits, the judge relied on assertions by Parks Department staff and hired biologists that ongoing stranding and killing of frog eggs is not hurting the overall frog population and the department’s “compliance plan” can adequately protect frogs and snakes in the short term.

Background

Ongoing killing of endangered frogs at the golf course and a Parks Department “restoration” plan that would actually evict endangered frogs and garter snakes from Sharp Park led to conservation groups filing suit under the Endangered Species Act and asking for an injunction on certain golf-course activities hurting endangered wildlife. Leading experts submitted declarations supporting the temporary injunction.

The city’s Parks Department cited increased observations of frog eggs last winter as evidence of an improving population trend for red-legged frogs in Sharp Park, yet restored habitat conditions at adjacent Mori Point, managed by the National Park Service, a wet winter, and increased surveys and scrutiny by biologists are more likely explanations. Leading scientific experts, with collective experience of more than seven decades of research and study of California amphibians and reptiles, have explained that the golf course is a “population sink” that kills more frogs than are bred and alters suitable habitat, threatening the long-term survival and recovery of both frogs and snakes. The experts also objected to the Parks Department’s alleged compliance plan, which is not being followed, as “unworkable.”

Sharp Park Golf Course faces crumbling infrastructure, annual flooding problems and ongoing environmental violations. Dozens of San Francisco community, recreation, environmental and social-justice groups are calling for a more sustainable public park at the site. A San Francisco Board of Supervisors committee will vote Dec. 5 on legislation introduced by Supervisor John Avalos that would create a long-term solution for Sharp Park by transitioning management to the National Park Service’s Golden Gate National Recreation Area. This change would not only protect endangered wildlife but also improve recreation and public access and save San Francisco taxpayers’ money. The proposed partnership would end the city’s legal and financial liabilities for Sharp Park and put the National Park Service in charge of protecting endangered species and providing public recreation, allowing San Francisco to reinvest its scarce resources in city-based parks, recreation centers and golf courses.

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