Environmental Litigation + Regulatory
SAN FRANCISCO (November 30, 2011) – Federal district court judge Susan Illston, in a ruling issued late Tuesday afternoon, denied a preliminary injunction sought by environmental activists seeking to close the historic Sharp Park Golf Course, owned and operated by the City and County of San Francisco but located in neighboring Pacifica.
The course, which has existed for almost 80 years, was designed by legendary architect Dr. Alister MacKenzie, the man who created Augusta National, Cypress Point and Royal Melbourne, recent site of the Presidents Cup competition. The course is a rarity – a seaside links open to all at modest greens fees.
“The court came to the right conclusion,” said Richard Harris, co-founder of the San Francisco Public Golf Alliance, which intervened in the case in an effort to save the course. “The evidence clearly showed that the species are doing quite well at Sharp Park and that the city’s efforts to improve their habitat while at the same time providing affordable recreation to a diverse and vibrant group of local golfers, is working.”
The plaintiffs in Wild Equity Institute v. City & County of San Francisco had urged the court to completely halt mowing on 10 of the 18 holes, ban winter flood-relief pumping, and severely restrict the use of golf carts. The plaintiffs argued that those activities “take” the threatened California red-legged frog and the endangered San Francisco garter snake, in violation of the Endangered Species Act.
In its 15-page ruling, denying the injunction, the court noted that “[e]xperts for both sides agree that the overall Frog population has increased over the last 20 years,” (page 8) and that “plaintiffs have failed to show a likelihood of irreparable harm,” which is a requirement for preliminary relief. The case is set for trial July 16, 2012 in Federal District Court in San Francisco.
In the course of her opinion, Judge Illston found persuasive the declaration of Dr. Mark Jennings, an acclaimed expert on the frog and snake, and one of the persons who initially petitioned to declare the California Red Legged Frog a “threatened” species. Dr. Jennings is an expert who has offered his opinion on behalf of the SFPGA.
“Over the course of the past two decades,” Dr. Jennings told the court, “all available scientific evidence shows that the Frog population at Sharp Park has dramatically increased.” The courts also relied on testimony from the City’s staff who have worked hard to improve habitat for the species in and about Sharp Park. (Pages 10-11)
Judge Illston noted that “[t]he expansion of the Frog population,” coupled with other factors, “make this a situation that does not warrant the temporary, immediate, and drastic relief afforded by a preliminary injunction.” (Page 14)
In ruling that mowing can continue, the court observed that “the only evidence that plaintiffs provide that take is occurring with respect to the use of these vehicles was a single Snake that died six years ago.” (Page 15) However, the court also noted that the details and cause of the snake death were “inconclusive,” and since that time, the City has implemented substantial measures to safeguard and protect both the frog and snake.
SFPGA's attorney in the case, Chris Carr of Morrison & Foerster, said that the court's finding that the frog population at Sharp Park is thriving should give plaintiffs pause in pursuing their suit further.
"Plaintiffs' position that the Endangered Species Act is violated by the death of a single or even a few frog eggs out of the hundreds of thousands or more laid each year at Sharp is simply untenable in the face of this biological reality,” Carr said. “It is precisely the sort of extreme position, and abuse of the ESA's citizen suit provision, that fuels legislative efforts to gut the law. For the same reasons, a decision adopting plaintiffs' position would provide an unusually attractive vehicle for the U.S. Supreme Court to consider the reach of the ESA."
After the decision, SFPGA co-founder Bo Links voiced hope for an amicable resolution of the litigation.
“While we are fully prepared to defend Sharp Park and its historic legacy of public golf at trial, we also will work hard to promote responsible solutions to the current situation,” said Links. “The fact is this course has been there for 80 years. It was designed by a master architect who is known and revered the world over. And it’s a course that is loved by all who play it. We want to help preserve that.”
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