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

Dec 112012
 

U.S. District Judge Susan Illston dismissed as moot a challenge to San Francisco's management of a park occupied by California red-legged frogs and San Francisco garter snakes (Wild Equity Institute v. City and County of San Francisco,  11-958-SI, N.D. Cal.).

Don't shank on me. (Photograph by Rob Schell)

Previously, there had been no Incidental Take Statement, but now, Illston said, there is:

In the instant case, plaintiffs alleged that the City’s operation and maintenance of the Sharp Park results in an unauthorized take of the Frog and the Snake, and “[b]y taking these species without obtaining an Incidental Take Permit . . . the City is violating the ESA.” Compl. ¶ 1. The ITS now authorizes take of the Frog and the Snake by golf course operation and maintenance activities, and the construction and restoration projects. If the City fails to abide by the terms of the ITS, then plaintiffs will have a new cause of action, but until then the City is shielded from liability. Therefore, the Court finds that plaintiffs’ claims are rendered moot by the ITS.

The plaintiffs had argued that issuance of the ITS did not moot the Section 9 claim, because the ITS would only become effective after the Corps of Engineers granted a Section 404 permit.

But Illston said that "[o]ther language in the ITS clearly contemplates that the document is self-effectuating: “to be exempt from the prohibitions of Section 9
of the Act, the Corps and the City shall ensure compliance with the following terms and conditions . . . . These terms and conditions are nondiscretionary.” Id. at 41 (emphasis added). Thus, the language contemplates that the City and Corps must immediately comply with all of terms of the ITS for Section 9 immunity, and the [sic] cannot wait for a permit that incorporates the terms of the ITS. Furthermore, many of the terms relate to the activities at the Park which would not necessarily be covered by the Project permit (for example, ongoing activities having nothing to do with construction, like mowing, gopher control, and golf cart driving, or future conservation activities not related to construction, like development of a water quality monitoring plan and future reporting requirements). Id. at 41-46.

"Moreover, the ESA implementing regulations clearly state that the ITS does not need a separate grant or permit to be effectuated. 50 C.F.R. § 402.14(i)(5) (stating that any taking that is “in compliance with the terms and conditions of that [ITS] statement is not a prohibited taking under the Act, and no other
authorization or permit under the Act is required.”) (emphasis added).

Continued Illston:

Plaintiffs are concerned that unauthorized take of the Frogs and the Snakes will continue to occur until a permit is issued, and that the Corps might deny the permit, grant a permit without incorporating the ITS conditions, or delay a decision on the permit indefinitely. However, because the ITS is self-effectuating, even if the Project permit is denied for other reasons, the Corps and the City are required to follow each of the terms and conditions in the ITS. If they fail to do so, their take of the Frog and the Snake will no longer be immune from liability, and plaintiffs will have a new cause of action against them. Similarly, if the Corps issues a permit that fails to incorporate the conditions of the ITS, the ITS will have been violated and plaintiffs can renew their suit. Finally, even if the Corps delays its decision on the permit, the other requirements in the ITS that have nothing to do with the Project (e.g., mowing and golf cart requirements) must still be followed, or defendants will loose [sic] their immunity from suit.

Earlier coverage of this lawsuit is here and here. Nossaman, Guthner has this entry on the order.

Full text of decision follows:

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

WILD EQUITY INSTITUTE, et al., No. C 11-00958 SI
Plaintiffs,ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS AND VACATING HEARING

v.

CITY AND COUNTY OF SAN FRANCISCO, et al.,

Defendants.

Currently before the Court is defendants’ motion to dismiss the case pursuant to Federal Rule of Civil Procedure 12(b)(1). Defendants argue that when the United States Fish and Wildlife Service issued its final Biological Opinion and Incidental Take Statement on October 2, 2012, the case became moot. Pursuant to Civil Local Rule 7-1(b), the Court finds this matter suitable for disposition without oral argument and therefore VACATES the hearing currently scheduled for December 14, 2012. Having carefully considered the papers submitted, the Court GRANTS defendants’ motion to dismiss, for the reasons set forth below.

BACKGROUND

Plaintiffs, various non-profit conservation groups, filed suit against the City and its officials for
violating the Endangered Species Act (the “ESA”), 16 U.S.C. §§ 1531-1544. Plaintiffs allege that
defendants’ operations and activities at Sharp Park Golf Course have caused the “taking” of the
threatened Californian red-legged frog (the “Frog”) and the endangered San Francisco garter snake (the
“Snake”), and that therefore, defendants should have obtained an Incidental Take Permit pursuant to
Section 10 of the ESA, 16 U.S.C. § 1539(a)(1)(B). Compl. at ¶ 1. 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. Id. at ¶¶ 54-60. Plaintiffs also
claim that other golf course operation activities – lawn mowing and golf cart usage – harm the Snake
and Frog by running them over. Id. at ¶¶ 54-62. Defendant City owns and operates Sharp Park, which
is a public park located in the City of Pacifica and contains an 18-hole golf course constructed in 1930.
The Court allowed the San Francisco Public Golf Alliance (“SFPGA”) to intervene as a defendant in
this action as well. Docket No. 44.

The lawsuit was filed in March, 2011. In May 2011, the City asked the U.S. Army Corps of
Engineers (the “Corps”) to initiate formal Section 7 consultation with the United States Fish and
Wildlife Service (“FWS”). In August 2011, the City submitted a section 404 permit application to the
Corps for the Sharp Park Pump House Safety and Infrastructure Improvement Project (the “Project”),
and in October the Corps requested that the FWS provide a formal consultation on the City’s section
404 permit application for the Project. Over the next several months, the City developed multiple drafts
of a Biological Assessment, and the FWS began its formal consultation process. On April 26, 2012, this
Court issued a stay pending the FWS’s formal consultation and the issuance of its final Biological
Opinion (“BiOp”). Docket No. 141.

On October 2, 2012, the FWS issued its final BiOp. Docket No. 146. In the BiOp, the FWS
made a jeopardy determination, in accordance with regulation, based on the status of the species, the
environmental baseline, the effects of the proposed action, and cumulative effects. BiOp 19-20. In its
report on the effects of the proposed action, the FWS analyzed the effects of the construction, the
ongoing golf course maintenance and operations, and the restoration actions. Id. at 30-38. The FWS
concluded that the “Project, as proposed, is not likely to jeopardize the continued existence of the
California red-legged frog or San Francisco garter snake.” Id. at 38.

As part of the BiOp, the FWS also issued an Incidental Take Statement (“ITS”). As explained
in the ITS, Section 9 of the ESA makes it unlawful for any person to “take” any endangered or
threatened species. 16 U.S.C. § 1538(a)(1)(B). “Take” is defined to mean “harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect, or attempt to engage in such conduct.” BiOp 39; 16 U.S.C.
§ 1532(19). The ESA allows the FWS to authorize certain types of incidental take. “Under the terms
of section 7(b)(4) and section 7(o)(2), taking that is incidental and not intended as part of the agency
action is not considered to be prohibited taking under the Act provided that such taking is in compliance
with this Incidental Take Statement.” BiOp 39.

The ITS states that the FWS anticipates that, as a result of the construction activities, all Frogs
and Snakes within the Horse Stable Pond construction site will be subject to incidental take in the form
of harassment or capture, and anticipates that, in total, one Frog will be killed or injured. Id. at 39-40.
The FWS further anticipates that, due to golf course maintenance and operations, all Frogs and Snakes
will be subject to incidental take in the form of harassment, and one Frog and one Snake will be killed
or injured. Id. at 40. Furthermore, the FWS anticipates that 130 Frog egg masses each year will be
subject to incidental take in the form of harm, harassment, capture, injury, or death as a result of
pumping activities for the next 10 years. Id. Finally, the FWS found that all Frogs and Snakes in the
restoration area will be subject to incidental take in the form of harassment. Id.

In the “Terms and Conditions” section, the ITS states that “to be exempt from the prohibitions
of Section 9 of the Act, the Corps and the City shall ensure compliance with the following terms and
conditions . . . . These terms and conditions are nondiscretionary.” Id. at 41. The ITS outlines 31
requirements or sub-requirements that the City and Corps must follow; if they fail to comply, “the
protective coverage of section 7(o)(2) may lapse.” Id. at 39, 41-45.

LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(1) allows a party to challenge a federal court’s jurisdiction
over the subject matter of the complaint. Fed. R. Civ. Pro. 12(b)(1). As the party invoking the
jurisdiction of the federal court, the plaintiffs bear the burden of establishing that the court has the
requisite subject matter jurisdiction to grant the relief requested. See Kokkonen v. Guardian Life Ins.
Co. of America, 511 U.S. 375, 377 (1994) (citation omitted).

The jurisdiction of federal courts depends on the existence of a “case or controversy” under
Article III of the Constitution. See PUC v. FERC, 100 F.3d 1451, 1458 (9th Cir. 1996). A claim is
moot if it has lost its character as a present, live controversy, and if no effective relief can be granted:

“Where the question sought to be adjudicated has been mooted by developments subsequent to filing
of the complaint, no justiciable controversy is presented.” Flast v. Cohen, 392 U.S. 83, 95 (1968). A
claim also may be considered moot if interim relief or events have completely and irrevocably
eradicated the effects of the alleged violation. See Norman-Bloodsaw v. Lawrence Berkeley Lab., 135
F.3d 1260, 1274 (9th Cir. 1998). It does not matter if the controversy was “live” when the complaint
was filed. SW. Ctr. for Biological Diversity v. U.S. Forest Serv., 82 F. Supp. 2d 1070, 1079 (D. Ariz.
2000) (citing Humboldt Cnty. v. United States, 684 F.2d 1276, 1283-84 (9th Cir. 1982)). Accordingly,
“Article III of the Constitution prohibits federal courts from taking further action on the merits in moot
cases,” and the moot case must be dismissed due to the court’s lack of subject matter jurisdiction.
Envtl. Prot. Info. Ctr., Inc. v. Pac. Lumber Co., 257 F.3d 1071, 1076 (9th Cir. 2001) (citations omitted).

DISCUSSION

Defendants argue that plaintiffs’ case must be dismissed because the ITS renders the case moot.
The ITS “functions as a safe harbor provision immunizing persons from Section 9 liability and penalties
for takings committed during activities that are otherwise lawful and in compliance with its terms and
conditions.” Arizona Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, Bureau of Land Mgmt., 273 F.3d
1229, 1239 (9th Cir. 2001) (citing 16 U.S.C. § 1536(o)). Other cases in this circuit agree that the ITS
shields plaintiffs from liability under the ESA as long as they comply with its terms. See e.g., Center
for Biological Diversity v. Salazar, 695 F.3d 893, 909 (9th Cir. 2012) (“Take that complies with the
terms and conditions of an ITS is not a prohibited take under Section 9.”) (citing 16 U.S.C. § 1536(o)(2);
50 C.F.R. § 402.14(i)(5)); Oregon Wild v. Connor, No. 6:09-CV-00185-AA, 2012 WL 3756327, at *2
(D. Or. Aug. 27, 2012) (“A ‘take’ occurring under an ITS is exempt from ESA Section 9 liability”
(citing Ramsey v. Kantor, 96 F.3d 434, 441 (9th Cir. 1996) (“Section 7(o) ‘indicates that any taking –
whether by a federal agency, private applicant, or other party – that complies with the conditions set
forth in the incidental take statement is permitted’”)).

Furthermore, “case law confirms that issuance of a Biological Opinion, with an ITS, moots ESA
Section 9 claims.” Oregon Wild, 2012 WL 3756327, at *2 (citing S. Utah Wilderness Alliance v.
Medigan, No. 92-cv-1094, 1993 WL 19650, at *1 (D.D.C. Jan. 6, 1993); Or. Natural Res. Council v.
Bureau of Reclamation, No. 91-cv-6284, 1993 U.S. Dist. LEXIS 7418, at *24-*25 (D. Or. Apr. 5,
1993)). In the instant case, plaintiffs alleged that the City’s operation and maintenance of the Sharp
Park results in an unauthorized take of the Frog and the Snake, and “[b]y taking these species without
obtaining an Incidental Take Permit . . . the City is violating the ESA.” Compl. ¶ 1. The ITS now
authorizes take of the Frog and the Snake by golf course operation and maintenance activities, and the
construction and restoration projects. If the City fails to abide by the terms of the ITS, then plaintiffs
will have a new cause of action, but until then the City is shielded from liability. Therefore, the Court
finds that plaintiffs’ claims are rendered moot by the ITS.

Plaintiffs argue that, although generally an ITS might render a Section 9 claim moot, in this case
it does not because of the particular requirements of this ITS. Plaintiffs point to the ITS statement that,
“[t]he measures described below are non-discretionary, and must be implemented by the Corps of
Engineers and the City so that they become binding conditions of any grant or permit issued to the City,
as appropriate, in order for the exemption in section 7(o)(2) to apply.” BiOp 39. Plaintiffs argue that
this clause shows that the ITS is not self-effectuating, but requires to Corps to incorporate the terms of
the ITS into a grant or permit to effectuate the ITS. Therefore, they argue, only after a grant is issued
incorporating these terms will the case become moot.

The Court disagrees with this interpretation of the ITS. Other language in the ITS clearly
contemplates that the document is self-effectuating: “to be exempt from the prohibitions of Section 9
of the Act, the Corps and the City shall ensure compliance with the following terms and conditions .
. . . These terms and conditions are nondiscretionary.” Id. at 41 (emphasis added). Thus, the language
contemplates that the City and Corps must immediately comply with all of terms of the ITS for Section
9 immunity, and the [sic] cannot wait for a permit that incorporates the terms of the ITS. Furthermore, many
of the terms relate to the activities at the Park which would not necessarily be covered by the Project
permit (for example, ongoing activities having nothing to do with construction, like mowing, gopher
control, and golf cart driving, or future conservation activities not related to construction, like
development of a water quality monitoring plan and future reporting requirements). Id. at 41-46.
Moreover, the ESA implementing regulations clearly state that the ITS does not need a separate grant
or permit to be effectuated. 50 C.F.R. § 402.14(i)(5) (stating that any taking that is “in compliance with
the terms and conditions of that [ITS] statement is not a prohibited taking under the Act, and no other
authorization or permit under the Act is required.”) (emphasis added).

Plaintiffs are concerned that unauthorized take of the Frogs and the Snakes will continue to occur
until a permit is issued, and that the Corps might deny the permit, grant a permit without incorporating
the ITS conditions, or delay a decision on the permit indefinitely. However, because the ITS is self-
effectuating, even if the Project permit is denied for other reasons, the Corps and the City are required
to follow each of the terms and conditions in the ITS. If they fail to do so, their take of the Frog and the
Snake will no longer be immune from liability, and plaintiffs will have a new cause of action against
them. Similarly, if the Corps issues a permit that fails to incorporate the conditions of the ITS, the ITS
will have been violated and plaintiffs can renew their suit. Finally, even if the Corps delays its decision
on the permit, the other requirements in the ITS that have nothing to do with the Project (e.g., mowing
and golf cart requirements) must still be followed, or defendants will loose their immunity from suit.

CONCLUSION

For the foregoing reasons, the Court finds that the ITS renders plaintiffs’ claims moot.
Accordingly, Defendants’ motion to dismiss is GRANTED. The case is DISMISSED WITHOUT
PREJUDICE. The clerk shall close the file.

IT IS SO ORDERED.

Dated: December 6, 2012

SUSAN ILLSTON
United States District Judge

 

Sharp Park case moves forward

 Posted by on April 27, 2012
Apr 272012
 

A lawsuit challenging operations at a golf course owned by the city of San Francisco will proceed, U.S. District Judge Susan Illston ruled yesterday (Wild Equity Institute v. City and County of San Francisco, 11-958 SI, N.D. Cal.).

Illston, who had previously denied a request for an injunction to halt park activities, stayed the case while the city consults with the Fish and Wildlife Service on activities that could harm the two federally listed species that occupy the park -- the threatened California red-legged frog and endangered San Francisco garter snake.

Illston said there is some question as to whether the frog population is growing, as asserted by the city.

New evidence and recent FWS activity have called into question the growth of the frog population at Sharp Park. In its denial of a preliminary injunction, the Court relied heavily on the City’s ability to carefully move the stranded egg masses. See Order at 14-15. The Court noted that during the winter of 2010-11, the City found 159 egg masses; it then requested and received permission to move 128 of them. See Order at 8 (citing Campo Dep. at 104)). However, the FWS has since revoked the City’s authorization to move the stranded egg masses. See Crystal Decl., Ex. 1 (Dec. 8, 2001 FWS letter). It is unclear what effect the revocation will have on the Frog’s population.

Plaintiffs have also pointed to testimony that calls into question whether the Frog population is increasing. They cite defendants’ expert Lisa Wayne, Sharp Park’s Natural Areas Program Manager, who testified at deposition that she could not say whether the population trend of the Frog at Sharp Park was increasing or decreasing, and that while the 2010-2011 rainy season was the highest she had seen, the egg mass population fluctuates from year to year. Wayne Dep. at 249:15-250:9. Plaintiffs also provide a new declaration from their expert, Dr. Marc Hayes, one of the scientists to originally petition the FWS to list the Frog. See Emery Decl., Ex. B (Hayes Rep. III)). Dr. Hayes now states that rather than increasing, recent analysis shows that egg mass numbers at Horse Stable Pond are merely stable. Id. at ¶ 62. The Court finds that the City has not established that there is no genuine issue as to the growth of the Frog population.

Illston did not rule on the merits of the plaintiffs' complaint. Instead, she found that they had standing to pursue their claim and stayed the matter until October, by which time consultation with FWS should be complete.

The environmental groups' press release is pasted below the links.

Here's the release issued by the environmental groups:

For Immediate Release, April 26, 2012

Contact: Brent Plater, Wild Equity Institute, (415) 572-6989
Jeff Miller, Center for Biological Diversity, (415) 669-7357
Arthur Feinstein, Sierra Club, (415) 680-0643
Neal Desai, National Parks Conservation Association, (510) 368-0845

Judge Cites Evidence Sharp Park Golf Course Is Harming Endangered Frogs,
Awaits U.S. Fish and Wildlife Service Input

Order Discusses Harm, Population Impacts to Red-legged Frogs

SAN FRANCISCO — U.S. District Judge Susan Illston today rejected the City of San Francisco’s attempt to dismiss a lawsuit filed by six conservation organizations over the ongoing killing of red-legged frogs at Sharp Park Golf Course. Explaining that new evidence and recent Fish and Wildlife Service restrictions have called into question San Francisco Park Department claims that the frog population at Sharp Park is growing, the court ordered the city to obtain authorization from the Fish and Wildlife Service for golf course activities that could harm endangered species. The judge ruled conservation groups have legal standing to bring the case, but stayed the lawsuit until October, when San Francisco could face a court trial over Endangered Species Act violations if it does not obtain a federal permit.

“The court’s ruling lays bare the damage golf course activities such as draining water from wetlands exacts on two of the Bay Area’s most imperiled animals,” said Brent Plater, executive director of the Wild Equity Institute. “We expect the Fish and Wildlife Service to require that the golf course cease killing endangered species and propose a comprehensive mitigation and restoration plan as part of any permit.”

The Park Department argued that draining aquatic feeding and breeding habitats for the California red-legged frog and San Francisco garter snake at Sharp Park Golf Course somehow benefits the species. In rejecting these assertions, the court cited contradictory testimony from the city’s own experts and staff that the golf course activities harm and kill protected wildlife.

“The endangered species permit process will weigh the biological impacts of excessive water pumping and habitat destruction to protect one golf course,” said Jeff Miller of the Center for Biological Diversity. “The permit should force the Park Department to change golf course operations to actually protect imperiled frogs and snakes.”

The Park Department has killed endangered frogs six of the past 10 winters, and its so-called “compliance plan” for endangered species has been a complete failure. In February, the department was caught again killing threatened red-legged frogs at the course, draining Sharp Park’s wetlands in a failed attempt to prevent frogs from breeding in their historic ponds.

The Washington, D.C. public-interest law firm Meyer, Glitzenstein & Crystal represents the coalition of conservation groups in the lawsuit.

Background

The Fish and Wildlife Service last year notified the golf course that it was specifically prohibited from handling or moving frog egg masses at Sharp Park and must obtain a permit for any golf course activities affecting protected species. The Service also denied the Park Department’s request to drain wetlands and dredge lagoons at Sharp Park, cynically referred to by the city as “habitat management and scientific studies.” Water pumping, dredging and other activities harmful to frogs can only occur if the department obtains a federal “incidental take” permit with an accompanying conservation plan.

The city-owned golf course at 400-acre Sharp Park in Pacifica is plagued by crumbling infrastructure, annual flooding problems and ongoing environmental violations. More than three-dozen San Francisco community, recreation, environmental and social-justice groups have called for closing the golf course and creating a more sustainable public park at Sharp Park. A 2011 peer-reviewed scientific study by independent scientists and coastal experts concluded that the most cost-effective option for Sharp Park is to remove the golf course and restore the functions of the original natural ecosystem, which will also provide the most benefit to endangered species.

The Park Department has refused to consider this option, and is instead pursuing a plan that would evict endangered species from the site and bail out the golf course’s financial problems with tens of millions of dollars of taxpayer money. The San Francisco Board of Supervisors passed legislation in December 2011 to prevent this from happening, but Mayor Ed Lee, an avid golfer, vetoed the legislation. Further action by the board is expected this year.

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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