Wild Equity Institute et al v. City and County of San Francisco et al

Filing 141


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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 9 WILD EQUITY INSTITUTE, et al., Plaintiffs, United States District Court For the Northern District of California 10 11 12 No. C 11-00958 SI v. CITY AND COUNTY OF SAN FRANCISCO, et al., 13 Defendants. ORDER DENYING DEFENDANT’S AND DEFENDANT-INTERVENOR’S MOTIONS FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; ISSUING STAY / 14 15 Before the Court are the parties’ cross motions for summary judgment. Defendant City and 16 County of San Francisco (the “City”) and defendant-intervenor San Francisco Public Golf Alliance 17 (“SFPGA”) have filed separate motions for summary judgment on the grounds that plaintiffs do not have 18 standing to pursue their claims, or, in the alternative, seeking a stay while the City begins consultation 19 with the Fish and Wildlife Service. The City also seeks a judgment on the merits that plaintiffs cannot 20 establish reasonably certain threat of imminent harm to the San Francisco Garter Snake (the “Snake”). 21 Plaintiffs, a collection of non-profit conservation grounds, filed a motion seeking partial summary 22 judgment on one issue of liability - whether the City’s water pumping activities cause “take” of the 23 California red legged frog (the “Frog”). 24 A hearing was held on the motions on April 20, 2012. Having considered the papers submitted 25 and the arguments of counsel, the Court hereby DENIES both parties’ motions and STAYS plaintiffs’ 26 case. 27 28 1 BACKGROUND Plaintiffs filed suit against the City and its officials for violation of the Endangered Species Act 3 (the “ESA”), 16 U.S.C. §§ 1531-1544. Plaintiffs allege that defendants' operations and activities at 4 Sharp Park Golf Course have caused the “taking” of the threatened Frog and the endangered Snake, and 5 that therefore defendants must halt their activities or obtain an Incidental Take Permit ("ITP") pursuant 6 to Section 10 of the ESA, 16 U.S.C. § 1539(a)(1)(B). Compl. at ¶ 1. Specifically, plaintiffs contend 7 that defendants' water management at Sharp Park has exposed frog egg masses to the air, causing fatal 8 desiccation of the egg masses, thereby reducing the frog population. Id. at ¶¶ 54-60. Plaintiffs also 9 claim that other golf course operation activities -- lawn mowing and golf cart usage among them -- 10 United States District Court For the Northern District of California 2 harm the Snake and Frog by running them over or otherwise “harassing” them within the meaning of 11 the ESA. Id. at ¶¶ 54-62. Along with other relief, plaintiffs seek a declaration that defendants are 12 violating the ESA by illegally taking the Frog and the Snake without an ITP, and an injunction against 13 defendants to prevent ongoing activities allegedly causing take. Id. at 16. Defendant City owns and 14 operates the park; the Court allowed the SFPGA to intervene as a defendant in this action as well. Doc. 15 44. 16 17 1. The Endangered Species Act 18 The Endangered Species Act of 1973 (“ESA”), 16 U.S.C. § 1531, contains a variety of 19 protections designed to save from extinction species that the Secretary of the Interior designates as 20 endangered or threatened. Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 21 U.S. 687, 690 (1995). Section 9 of the Act makes it unlawful for any person to “take” any endangered 22 or threatened species. 16 U.S.C. § 1538(a)(1)(B). "Take" is defined to mean "harass, harm, pursue, 23 hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in such conduct." 16 U.S.C. 24 § 1532(19). The U.S. Fish and Wildlife Service's ("FWS") regulations further define "harm" to include 25 any "significant habitat modification or degradation where it actually kills or injures fish or wildlife by 26 significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." 50 27 C.F.R. § 17.3; see also Sweet Home, 515 U.S 687 (upholding FWS’ definition of "harm"). The 28 prohibition on take extends to both endangered and threatened species, and includes any “egg or 2 1 offspring” thereof. 16 U.S.C. § 1532(8); see also 50 C.F.R. § 17.31(a). The Ninth Circuit has 2 interpreted the take prohibition to make unlawful "[a] reasonably certain threat of imminent harm to a 3 protected species." Marbeled Murrelet v. Pacific Lumber Co., 83 F.3d 1060 (9th Cir. 1996). The fact that an activity is likely to "take" a listed species does not necessarily proscribe that 5 activity altogether. Instead, the ESA allows the FWS to authorize certain types of incidental take. 6 Section 7(a)(2) requires each Federal agency, in consultation with FWS, to insure that any action 7 authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of 8 any listed species; such action requires consultation with the FWS. 16 U.S.C. § 1536(a)(2). Non- 9 federal entities can pursue a Section 10(a)(1)(B) Incidental Take Permit ("ITP"), which requires the 10 United States District Court For the Northern District of California 4 submission of a conservation plan to the FWS. 16 U.S.C. § 1539(a)(1)(B). The conservation plan 11 requires, inter alia, a description of the impact resulting from any take, the reasons why alternatives are 12 not being utilized, and what steps the applicant will take to minimize and mitigate impacts of its actions. 13 Id. 14 15 2. The Protected Animals 16 A. 17 The California Red-Legged Frog, Rana draytonii, the largest frog native to the western United 18 States, has been lost from over 70% of its historic range, and has suffered a population decline of 90%. 19 See Recovery Plan for the Frog (FWS 2002) (Pl. Mot. for Prelim. Inj. Ex. 17 at 1). According to one 20 of plaintiffs' experts, the Frog is one of many amphibian species that have endured massive declines in 21 recent decades, and is "currently only found in select coastal drainages from Marin County south to Baja 22 California, with a few isolated populations in the Sierra Nevada and the Transverse ranges." See Order 23 Denying Prelim. Inj. (“Order”) at 3 (citing Vrendenberg Decl. ¶ 9). In 1996, the FWS listed the Frog 24 as a "threatened" species -- i.e., "likely to become an endangered species within the foreseeable future 25 throughout all or a significant portion of its range," 16 U.S.C. § 1532(20); see 61 Fed. Reg. 25,813 26 (1996). The California Red-Legged Frog 27 The Frog breeds in aquatic habitats from November to April. Vrendenberg Decl. ¶ 8. "In recent 28 years, the egg masses have been found in Sharp Park beginning in late December." Pl.'s Mot. for Prelim 3 1 Inj. at 6; see, e.g., Dec., 2010 Data Sheets (Pl. Ex. 18). The Frog’s breeding involves females laying 2 eggs while being fertilized by males, and attaching the eggs to emergent vegetation near the water 3 surface. Id.; Vrendenberg Dec. ¶ 8. The egg masses can contain between 2,000-5,000 eggs. The Frogs 4 lay their eggs near the water surface to "maximiz[e] growth potential [through] high water temperatures" 5 and to "minimize[e] exposure to aquatic predators." If left undisturbed, the Frog's eggs hatch within 6 6 to 14 days, and the tadpoles typically metamorphose into Frogs between July and September. Order at 7 4 (citing Vredenberg Dec. ¶ 8). According to plaintiffs, "there is a significant breeding population of 8 the Frog at Sharp Park, part of a larger population that includes the Frog in the adjacent Mori Point 9 National Park." Id. United States District Court For the Northern District of California 10 11 B. The San Francisco Garter Snake 12 The Snake, Thamnophis sirtalis tetrataenia, "is a harmless and fantastically colored serpent 13 identified by its reddish-orange head with red, black, and turquoise blue racing stripes on its sides and 14 back." Order at 4 (citing Pl.'s Mot. for Prelim. Inj. at 7). Unlike the threatened Frog, the Snake is listed 15 as endangered, and, according to plaintiffs, is the most endangered serpent in North America; Snake 16 populations remain in only a few fragmented locations. Id. The Snake typically eats frogs, including 17 the California red-legged Frog. Id. In 2004, four Snakes were captured and released at Horse Stable 18 Pond in Sharp Park. Order at 4 (citing Sharp Park Conceptual Restoration Alternatives Report, App. 19 C. 10 (Nov. 2009)). In 2008, two Snakes were observed in Sharp Park near Horse Stable Pond. Id. 20 Since that time, there have been no reported sightings of the Snake in Sharp Park. Id. 21 22 3. Sharp Park 23 The City owns and operates Sharp Park, which is a public park located in the City of Pacifica 24 in San Mateo County. The Park is approximately 417 acres, and it contains an 18-hole golf course 25 constructed in 1930. The western border of the Park is the Pacific Ocean. A seawall constructed 26 between 1941 and 1952 eliminated the hydrologic connection between the Pacific Ocean and the 27 principal surface water body in Sharp Park, Laguna Salada. The parties dispute whether the water in 28 Laguna Salada was fresh or brackish prior to the construction of the seawall, a pertinent question as to 4 1 whether the protected animals (which cannot live in brackish water) inhabited the area prior to the 2 construction of the golf course. 3 Sharp Park and its golf course are divided by Highway 1. Residential development abuts 4 portions of the north and south boundaries of the park. Two portions of the National Park Service's 5 Golden Gate National Recreation Area ("GGNRA") -- Mori Point and Sweeney Ridge -- border Sharp 6 Park to the South and East. Pl.’s Mot. at 8. The park includes a wetlands complex, made up of Laguna 7 Salada, Horse Stable Pond, a channel that connects the two water bodies, and adjacent wetlands. 8 9 4. Defendant’s Allegedly Harmful Activities United States District Court For the Northern District of California 10 A. 11 During winter rains, large volumes of water drain into Sharp Park, raising the water levels in 12 Park water bodies and flooding portions of the golf course. Order at 5 (citing Kamman Hydrology 13 Report, Pl. Ex. 25). In 1941, a pump system was installed to control the water level in Horse Stable 14 Pond. Decl. Virginia Elizondo, Ex. 1 (Laguna Salada Resource Enhancement Plan). Currently, two 15 pumps exist in the pond, a primary pump with the capacity of 1,500 gallons per minute, and a backup 16 pump with a capacity of 10,000 gallons per minute. The pumped water leaves the Park in pipes through 17 the seawall to an outfall on the beach. The primary issue in this case is whether the pumping of water 18 lowers water levels from Horse Stable Pond such that it "strands" egg masses laid by the Frog, leaving 19 them to dessicate and die. A secondary issue with respect to the pumps is whether Frog tadpoles 20 become "entrained" in the pumps and die. Water Pumping 21 Concerns over the effect of the water pumping at Horse Stable Pond on the Frog egg masses 22 have existed for years. A 1992 letter from an Earth Island Institute biologist encouraging listing the 23 Frog as “threatened” warned, "Present water management practices at Sharp Park to reduce flooding of 24 the golf course is killing the red-legged frog eggs, probably in violation of the Endangered Species Act." 25 Order at 6 (citing Pl.’s Mot. for Prelim. Inj. Ex. 27 at 1). The biologist concluded that pumping led to 26 the desiccation of 50 egg masses in Sharp Park. Id. In the Federal Regulation listing the Frog as 27 threatened, the FWS specifically relied on the 1992 letter, noting that "poorly timed releases of storm 28 5 1 water from Horse Stable Pond at Sharp Park in February 1992 resulted in exposure and desiccation of 2 62 California red-legged frog egg masses." 61 Fed. Reg. at 25,825. 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In 2005, FWS sent a letter to San Francisco Recreation and Parks Department ("RPD") regarding the effects of the pump operation at Horse Stable Pond. The letter stated that: It is our understanding that beginning in early 2003 through 2004 and presently, the operation of a water pump that is controlled by the City and County of San Francisco Recreation and Parks Department (during the winter rainfall events) lowered the water level at Horse Stable Pond and resulted in the stranding and exposure of a number of egg masses of the California red-legged frog. This action apparently caused the death of an unknown quantity of embyronic tadpoles of the completely aquatic early stage of this animal's lifecycle. Crystal Decl., Ex. 14 (February 1, 2005 Letter from FWS) at 1. The letter went on to describe the definition of take under the ESA, stating that the Frog is protected from actions that damage or destroy its habitat. The FWS then recommended that "in order to avoid further potential violations of the [ESA], we recommend that you obtain authorization for incidental take through either Section 7 or 10(a)(1)(B), as appropriate for the California red legged frog, and also the San Francisco garter snake which also has been documented to inhabit the area." Id. Following the 2005 FWS letter, the City implemented a number of measures designed to mitigate harm to the Frog. One such measure was the creation of a monitoring protocol whereby a staff member would survey the Laguna Salada wetlands complex following any significant rainfall for vulnerable egg masses. Order at 7 (citing Wayne Decl. ¶ 21). Another measure was the creation of the 2009 “Endangered Species Compliance Plan for Sharp Park Golf Course,” which enumerated a number of self-imposed regulations, including requiring that “once egg masses are detected [by qualified staff], water levels will not be manipulated by Department personnel such that egg masses would be exposed to air by active water management actions." Order at 7 (citing Pl.’s Mot. for Prelim. Inj. Ex. 7 (“Compliance Plan”)). Another solution implemented by the City was to physically move vulnerable egg masses with FWS’s permission, a process known as translocation. During the winter of 2010-2011, the City found 159 egg masses, and, with authorization, moved 128 of them. However, on December 8, 2011, the FWS informed the City that they no longer had authorization to move the vulnerable egg masses. Crystal Decl., Ex. 1 (Dec. 8, 2011 Letter). 6 1 The parties dispute the population trend of the Frog. While the population has increased over 2 the last 20 years, see Order at 8, plaintiffs argue that the population may now be decreasing. Pl.’s Opp. 3 to Defs.’ MSJ at 13 (citing Hayes Decl. ¶¶ 60-71). Plaintiffs point out that the City’s translocation 4 efforts, which may have salvaged many of the egg masses, are no longer authorized. Id. (citing Murphy 5 Report at 8). 6 B. 8 The presence of the golf course in Sharp Park necessarily brings the use of lawn mowers and golf 9 carts. Plaintiffs argue that the City mows the course near Park water bodies that are "particularly 10 United States District Court For the Northern District of California 7 important habitat for the Frog and Snake." Order at 8 (citing Pl.'s Mot. for Prelim. Inj. at 12). Plaintiff 11 also provides evidence that golf carts are used both on cart paths and off of them, in violation of the 12 City’s own 2009 Compliance Plan. Id. (citing Pl.’s Mot. for Prelim. Inj. Ex. 11). Plaintiffs argue that 13 use of the vehicles causes ongoing take of the Frog and the Snake. In support, it provides evidence that 14 in 2005, a Snake was found "after it had been run over by a lawn mower." Defendants contend that the 15 cause of death of that snake is inconclusive, and, more generally, that neither mowing nor golf cart 16 usage causes take of the Snake or Frog. Mowing and Golf Cart Use 17 18 5. November 29, 2011 Order Denying Plaintiffs’ Motion for Preliminary Injunction 19 On September 23, 2011, plaintiffs filed a motion requesting a preliminary injunction to halt 20 defendants’ water pumping activities, as well as its lawn mower and golf cart usage on holes 9 through 21 18 of the Golf Course. On November 29, 2011, the Court denied plaintiffs’ motion. The Court found 22 that plaintiffs failed to establish irreparable injury in the absence of an injunction, one of the necessary 23 requirements to receive a preliminary injunction. The Court relied on testimony that the Frog population 24 had been increasing, and also found persuasive “defendants’ assertions that they will continue careful 25 monitoring of water levels, and continue to seek authorization from FWS for the movement of any 26 vulnerable egg masses.” See Order at 14. The Court concluded that irreparable harm was unlikely in 27 consideration of the expansion of the Frog population, coupled with defendants’ authorized and careful 28 movement of vulnerable egg masses. Id. 7 1 6. The City’s Section 7 Permit Process Following the denial of the preliminary injunction, the City sought initiation of formal Section 3 7 consultation with the FWS.1 The consultation the City seeks is for the Sharp Park Pump House Safety 4 and Infrastructure Improvement Project (the “Project”), in conjunction with the U.S. Army Corps of 5 Engineers (the “Army Corps”). The purpose of the project “is to protect the safety of personnel 6 responsible for operating and maintaining the pumps and cleaning the existing screen at the pump house 7 intake.” Crystal Decl., Ex. 17 (Jan. 18, 2012 FWS Letter). A January 18, 2012 letter from the FWS 8 notes that, “[a]t issue are effects to the threatened California red-legged frog and the San Francisco 9 garter snake.” Id. The letter describes a recent meeting that had occurred between the City and the 10 United States District Court For the Northern District of California 2 FWS about the proposed project, and states that the City “will be submitting a biological assessment that 11 provides more details about the pump house project and how it relates to other water management on 12 the Sharp Park Golf Course. The biological assessment will also include detailed conservation measures 13 to avoid and minimize effects to listed species.” Id. The letter concluded that consultation could not 14 begin until the FWS received the biological assessment. 15 The City developed a Biological Assessment (“BA”), and submitted a draft version on February 16 7, 2012. The BA describes the project as including two parts: (1) the construction action and (2) golf 17 course maintenance and operations. The BA describes the construction action as “intended to 1) ensure 18 the ongoing operation of the flood control pumps and worker safety when operating and maintaining 19 the pumps 2) to replace minor infrastructure (pathways) and 3) to enhance existing habitat for [the Frog] 20 and [the Snake].” Crystal Decl., Ex. 18. At a subsequent March 5, 2012 meeting regarding the draft 21 BA, the FWS suggested that the City provide further information about, inter alia, “the operation of the 22 23 24 25 26 27 28 1 Section 7(a)(2) provides that: Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical, unless such agency has been granted an exemption for such action by the Committee pursuant to subsection (h) of this section. In fulfilling the requirements of this paragraph each agency shall use the best scientific and commercial data available. 8 1 pumps within the context of golf course operations rather than as a benefit to the frog” and to “describe 2 whether any of the frog’s lifestages are entrained by pump operations.” Plater Decl., Ex. 1 (Mar. 29, 3 2012 FWS E-Mail). The City then submitted a revised version of the BA on March 20, 2012. After 4 plaintiffs inquired as to whether formal consultation had then initiated, an FWS official sent an email 5 to the parties on March 29, 2012, stating that “the Service has not yet reviewed the revised BA, and thus 6 has not yet decided whether it is final nor whether formal consultation can now be initiated.” Id. At 7 oral argument on April 20, 2012, the City’s attorneys represented to the Court that consultation may 8 begin within 7 days, at which time the 135-day clock on Section 7 consultation will begin. See 50 9 C.F.R. § 402.14. United States District Court For the Northern District of California 10 11 7. The Instant Motions 12 The parties have filed cross-motions for summary judgment. Plaintiffs seek partial summary 13 judgment on one issue of liability - whether the City’s water pumping activities causes “take” of the 14 Frog. The City and the SFPGA seek a determination that the plaintiffs’ lack standing to bring this suit. 15 In the alternative, defendants seek a stay of this litigation until the FWS completes the Section 7 16 consultation regarding the Project in Sharp Park. The City also seek summary judgment on the merits 17 that plaintiffs cannot establish reasonably certain threat of imminent harm to the Snake. 18 19 LEGAL STANDARD 20 Summary judgment is proper if the pleadings, the discovery and disclosure materials on file, and 21 any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled 22 to judgment as a matter of law. See Fed. R. Civ. P. 56(a). The moving party bears the initial burden of 23 demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 24 323 (1986). The moving party, however, has no burden to disprove matters on which the non-moving 25 party will have the burden of proof at trial. The moving party need only demonstrate to the Court that 26 there is an absence of evidence to support the non-moving party's case. Id. at 325. 27 Once the moving party has met its burden, the burden shifts to the non-moving party to "set out 28 ‘specific facts showing a genuine issue for trial.'" Id. at 324 (quoting then Fed. R. Civ. P. 56(e)). To 9 1 carry this burden, the non-moving party must "do more than simply show that there is some 2 metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 3 475 U.S. 574, 586 (1986). "The mere existence of a scintilla of evidence . . . will be insufficient; there 4 must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. 5 Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In deciding a summary judgment motion, the Court must view the evidence in the light most 7 favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. 8 "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from 9 the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment." Id. 10 United States District Court For the Northern District of California 6 However, conclusory, speculative testimony in affidavits and moving papers is insufficient to raise 11 genuine issues of fact and defeat summary judgment. Thornhill Publ'g Co., Inc. v. GTE Corp., 594 F.2d 12 730, 738 (9th Cir. 1979). The evidence the parties present must be admissible. Fed. R. Civ. P. 56(c). 13 14 DISCUSSION 15 16 The Court first addresses defendants’ motions for summary judgment on the issue of standing. The Court will then turn to defendants’ request for a stay. 17 18 1. Standing 19 Defendants argue that plaintiffs lack standing to pursue their claims under the ESA. The 20 “irreducible constitutional minimum” of Article III standing in environmental cases requires (1) that the 21 plaintiff have suffered an “injury in fact” - an invasion of a cognizable interest which is (a) concrete and 22 particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that there be a causal 23 connection between the injury and conduct complained of - the injury must be fairly traceable to the 24 challenged action of the defendant, and not the result of the independent action of some third party not 25 before the court; and (3) that it be likely, as opposed to merely speculative, that the injury will be 26 redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). 27 Defendants argue that plaintiffs have not established an injury in fact, causation, or 28 redressability. Regarding injury in fact, the City argues that “the increasing frog population has 10 enhanced, not diminished, the opportunities for plaintiffs’ members to observe the frogs at Sharp park 2 and the adjacent Mori Point property.” City MSJ at 8. The SFPGA, in its separate motion, argues that 3 because the Frog lays a large number of eggs, which suffer a 99% mortality rate from egg to adult, “the 4 annual loss of some Frog eggs or even masses has no impact on Plaintiffs’ ability to observe or study 5 Frogs in the area. This is especially so because . . . the Frog population at Sharp Park Golf Course has 6 been increasing, and the number of Frog egg masses found at Sharp Park last winter was the highest 7 ever recorded.” SFPGA MSJ at 5. The SFPGA further argues that plaintiffs cannot claim “psychic” 8 injury from seeing the take of the Frog or Snake, because plaintiffs have not alleged a “direct sensory 9 impact of a change in the plaintiff’s physical environment.” Id. at 8 (citing Fund for Animals v. Lujan, 10 United States District Court For the Northern District of California 1 962 F.2d 1391, 1396 (9th Cir. 1996) (finding cognizable psychic injury where plaintiff witnessed bison 11 being shot). 12 The Supreme Court, in Laidlaw, stated that the relevant inquiry for purposes of Article III 13 standing “is not injury to the environment but injury to the plaintiff.” 528 U.S. at 181. “We have held 14 that environmental plaintiffs adequately allege injury in fact when they aver that they use the affected 15 area and are persons ‘for whom the aesthetic and recreational values of the area will be lessened’ by the 16 challenged activity.” Id. (citing Sierra Club v. Morton, 405 U.S. 727, 735 (1972)); see also Defenders 17 of Wildlife, 504 U.S. at 562–563 (“Of course, the desire to use or observe an animal species, even for 18 purely esthetic purposes, is undeniably a cognizable interest for purposes of standing.”). 19 The Court finds that plaintiffs have adequately demonstrated injury in fact here. Plaintiffs have 20 attached numerous declarations from their members illustrating the harm they face due to the City’s 21 activities.2 Wild Equity Institute member Laurie Graham states that she lives six miles from Sharp Park 22 and Mori Point, and has visited the area twenty times since July 2006. Graham Decl., ¶ 2. She avers 23 that while there, she typically spends about four hours observing wildlife, and enjoys searching for the 24 Frog and Snake. Id. at ¶ 3. She states that she was there on February 27, 2012, and while at Mori Point 25 26 27 28 2 An organization has standing to bring suit on behalf of its members when (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purposes; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Ecological Rights Foundation v. Pacific Lumber Co., 230 F.3d 1141, 1146 (9th Cir. 2000). It is undisputed that those requirements are met here. 11 1 she could observe the Frog, but when she went to Laguna Salada and Horse Stable Pond to search for 2 the species, her experience was “negatively impacted by the habitat altering actions the golf course 3 conducts.” Id. at ¶ 4. She expresses concern that Sharp Park’s killing of individual eggs, tadpoles, or 4 adult Frogs and Snakes will degrade her ability to observe large numbers of the species. Id. at ¶ 5. Center for Biological Diversity member Jeff Miller avers that he has visited Sharp Park and Mori 6 Point on numerous occasions to observe the Frog and Snake in the wild. Miller Decl., ¶ 1. He states 7 that he is an expert birder and avid wildlife watcher, and, that on March 11, 2012, October 14, 2011, 8 July 28, 2011, January 8, 2011, November 8, 2010, May 7, 2010, and October 2, 2009, he visited Mori 9 Point and Sharp Park to observe the Frog and Snake. Id. at ¶ 6. On March 11, 2012, while at Mori 10 United States District Court For the Northern District of California 5 Point, he learned that other wildlife observers had recently seen a Snake, which gave him hope that he 11 might also see one. However, when he went to Sharp Park to search for the Frog and Snake around 12 Horse Stable Pond and Laguna Salada, his enjoyment was “degraded by the pumps used to drain the 13 species’ habitats.” Id. at 6. He states that unlike at the restored Mori Point, he has recently observed 14 fewer or no Frogs recently at Sharp Park. Id. at 7. Both Graham and Miller state that they plan on 15 returning to Sharp Park throughout the year to participate in the Golden Gate National Parks Endangered 16 Species Big Year competition. See Graham Decl. ¶ 9; Miller Decl. ¶ 11. 17 Surfrider Foundation member Michael Stewart states that he enjoys surfing at Sharp Park beach, 18 and typically ends up walking around both Sharp Park and Mori Point, where he enjoys searching for 19 the Frog and Snake. Stewart Decl. ¶ 1. He states that his ability to observe the Frog and Snake is “very 20 much dependent on the total aquatic habitat area that persists at Sharp Park, and the total number of 21 individuals that exist in the population.” Id. at ¶ 3. He states that because mowing and pumping 22 negatively impact the populations of the Frog and Snake, his interests in observing them is injured 23 “because the probability of observing the species is decreased.” Id. at ¶ 4. He also states that he intends 24 to return to Sharp Park regularly. Id. 25 Finally, National Parks Conservation Association member Robert Pilgrim avers that he lives one 26 mile from Sharp Park. Pilgrim Decl. ¶ 1. He states that he is a frequent visitor to Sharp park, and that 27 he always brings his camera to take photos of the Frog and the Snake. Id. at ¶ 6. He states that he has 28 never seen a Snake in the wild, but always looks when he goes. Id. at ¶ 7. He believes that ongoing 12 1 threats to the Snake from the golf course impair his enjoyment of his recreational hikes and activities. 2 Id. Plaintiffs have claimed impaired enjoyment of seeing animals in and around a specific pond in 4 a park they live near and visit frequently. They have pinpointed specific dates at which they’ve visited 5 the Park, seen or otherwise searched for the Frog and Snake, and expressed not only their intention but 6 specific plans to return. See Graham Decl. ¶ 9; Miller Decl. ¶ 11. They have fully described 7 defendant’s activities that they characterize as harmful, provided evidence of them, and alleged how 8 those activities specifically impact their enjoyment of the park. This is sufficient for the purposes of 9 standing. See Western Watersheds Project v. Kraayenbrink, 632 F.3d 472, 484 (9th Cir. 2001) (“We 10 United States District Court For the Northern District of California 3 have held that environmental groups had standing to bring an ESA claim where the groups’ members 11 regularly used and enjoyed an area inhabited by the imperilled species.”); Laidlaw, 528 U.S. at 182 12 (plaintiffs had standing where they averred that they lived near the complained-of facility, were 13 concerned about pollutants discharged into a river, and refrained from certain activities like swimming 14 due to the pollutants); Pacific Lumber, 230 F.3d at 1150 (plaintiffs had standing where its members 15 stated longstanding recreational and aesthetic interests in a creek, and alleged defendants’ conduct 16 impaired their enjoyment of recreational activities therein); Cf. Lujan v. Defenders of Wildlife, 504 U.S. 17 555, 564 (1992) (plaintiffs lacked standing where the two affidavits presented only “‘some day’ 18 intentions without any description of concrete plans” to return to international locations). 19 Defendants essentially argue that plaintiffs have not, and cannot, suffer an injury in fact because 20 the Frog population is growing. Defendants’ argument is flawed for two reasons. First, defendants have 21 not established at the summary judgment stage that the Frog population is, in fact, growing. Second, 22 even were defendants to establish that fact, it is not clear that population growth necessarily proscribes 23 a showing of injury in ESA cases. 24 Regarding the population trend of the Frog, the Court stated in its Order Denying a Preliminary 25 Injunction that “experts for both sides agree that the overall frog population has increased over the last 26 20 years.” Order at 8 (citing Hayes Supp. Decl. ¶ 11 (for plaintiffs); Jennings Decl. at 16 (for 27 defendants)). Both the City and SFPGA rely on this finding throughout their motions. However, a 28 district court’s findings at the preliminary injunction stage are not binding at the summary judgment 13 1 stage. See, e.g., Horphag Research Ltd. v. Garcia, 475 F.3d 1029, 1035 (9th Cir. 2007) (noting that 2 such findings are made before discovery). Here, the question is whether there is no genuine issue of 3 material fact as to the population trend of the Frog. 4 New evidence and recent FWS activity have called into question the growth of the Frog 5 population at Sharp Park. In its denial of a preliminary injunction, the Court relied heavily on the City’s 6 ability to carefully move the stranded egg masses. See Order at 14-15. The Court noted that during the 7 winter of 2010-11, the City found 159 egg masses; it then requested and received permission to move 8 128 of them. See Order at 8 (citing Campo Dep. at 104)). However, the FWS has since revoked the 9 City’s authorization to move the stranded egg masses. See Crystal Decl., Ex. 1 (Dec. 8, 2001 FWS United States District Court For the Northern District of California 10 letter). It is unclear what effect the revocation will have on the Frog’s population. 11 Plaintiffs have also pointed to testimony that calls into question whether the Frog population is 12 increasing. They cite defendants’ expert Lisa Wayne, Sharp Park’s Natural Areas Program Manager, 13 who testified at deposition that she could not say whether the population trend of the Frog at Sharp Park 14 was increasing or decreasing, and that while the 2010-2011 rainy season was the highest she had seen, 15 the egg mass population fluctuates from year to year. Wayne Dep. at 249:15-250:9. Plaintiffs also 16 provide a new declaration from their expert, Dr. Marc Hayes, one of the scientists to originally petition 17 the FWS to list the Frog. See Emery Decl., Ex. B (Hayes Rep. III)). Dr. Hayes now states that rather 18 than increasing, recent analysis shows that egg mass numbers at Horse Stable Pond are merely stable. 19 Id. at ¶ 62. The Court finds that the City has not established that there is no genuine issue as to the 20 growth of the Frog population. 21 Moreover, there is no caselaw to support defendants’ proposition that a growing population, 22 were it to exist, necessarily proscribes injury in a standing inquiry. Population-level impact has never 23 been included in the standing inquiry in ESA cases. See, e.g., Forest Conservation Council v. Rosboro 24 Lumber Co., 50 F.3d 781, 783 (9th Cir. 1995) (threat to a single pair of listed owls sufficient to warrant 25 an injunction). This necessarily follows from the fact that the standing inquiry focuses on injury to the 26 person, not the environment. Laidlaw, 528 U.S. at 181; see also Pacific Lumber, 230 F.3d at 1150 27 (“aesthetic perceptions are necessarily personal and subjective [and] the constitutional law of standing 28 . . . does not prescribe any particular formula for establishing a sufficiently concrete and particularized 14 aesthetic or recreational injury in fact.”) The question at the standing inquiry is whether the plaintiff 2 is a person “for whom the aesthetic and recreational values of the area will be lessened” by the 3 challenged activity. Laidlaw, 528 U.S. at 181. One can easily imagine a scenario where the aesthetic 4 value of an area may be lessened by stymied population growth even in the absence of population loss.3 5 Here, for example, Graham avers that as compared to Mori Point, where no water pumping occurs, her 6 viewing of Frogs at Horse Stable Pond was negatively impacted by the habitat altering actions the golf 7 course conducts. Graham Decl., ¶ 4. Miller, who describes himself as “an expert birder and avid 8 wildlife watcher,” often notes specific locations where he has seen Frogs and egg masses during his 9 visits, but states that the City’s activities reduce the total number of places where he might observe the 10 United States District Court For the Northern District of California 1 Frog. Miller Decl., ¶ 8. The Court therefore finds that plaintiffs have sufficiently alleged injury in fact 11 with respect to the Frog. 12 The SFPGA argues separately that plaintiffs cannot establish standing with respect to the Snake, 13 because any threat of injury to the plaintiffs would not be “actual and imminent” as required, but 14 “conjectural or hypothetical.” SFPGA Mot. at 6 (citing Summers v. Earth Island Inst., 555 U.S. 488, 15 493 (2009)). The SFPGA points out that the only evidence plaintiffs have of harm to the Snake is a 16 single dead Snake, allegedly killed by mowing operations, in 2005. Id. They argue that plaintiffs have 17 provided only conjecture that the City is taking the Snake, and that “even if the Snake is present in 18 Sharp Park, its elusive nature only makes it less perceptible (and perhaps even imperceptible) to 19 plaintiffs.” Id. at 7, n. 7. 20 The Court disagrees. First, for the purposes of standing, the Court may assume that plaintiff will 21 prevail on the merits that the City is taking the Snake. See Warth v. Seldin, 422 U.S. 490, 501 (1975) 22 (“For purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts 23 must accept as true all material allegations of the complaint, and must construe the complaint in favor 24 25 26 27 28 3 The SFPGA characterizes plaintiffs’ claim as one seeking “enhancement,” or a request that the City “voluntarily enhance the Frog population,” and states that a plaintiff cannot base injury on “nonenhancement” rather than “diminishment.” SFPGA, however, mischaracterizes plaintiffs’ claim: plaintiffs are not seeking acceleration of species growth by requiring that defendant engage in affirmative activity, like constructing a Frog habitat; instead, they seek restoration of natural population growth by ceasing pumping activity. Thus, even if the population is growing, plaintiffs do complain of “diminishment” - diminishment of natural rates of growth. 15 of the complaining party.”); Defenders of Wildlife v. Gutierrez, 532 F.3d 913, 924 (D.C. Cir. 2008) (“In 2 reviewing the standing question, the court must be careful not to decide the questions on the merits for 3 or against the plaintiff, and must therefore assume that on the merits the plaintiffs would be successful 4 in their claims.”). Second, the scarcity and elusiveness of the Snake cannot, by themselves, proscribe 5 a finding of standing. It would be incongruous with the purposes of the ESA to hold, as a matter of law, 6 that a private citizen cannot bring suit simply because an animal is difficult to see, or worse, that 7 because there are so few of the animal left, a person cannot be harmed by continued take.4 Numerous 8 plaintiffs have stated that they enjoy looking for the Snake, and, as noted above, they set forth their harm 9 with sufficient specificity and plausibility to establish injury. See Graham Decl. ¶¶ 5-10; Miller Decl. 10 United States District Court For the Northern District of California 1 ¶¶ 4-10. Here, because of the severely endangered nature of the Snake, the take of even a single Snake 11 could have significantly harmful effects on the plaintiffs and their ability to ever see one. The Court 12 finds that plaintiffs have established injury in fact with respect to the Snake. 13 The City and the SFPGA also argue that plaintiffs have failed to establish causation and 14 redressability. Regarding causation, the City argues that “plaintiffs have not even attempted to 15 demonstrate that San Francisco’s activity at Sharp Park has reduced the frog population there to the 16 extent it would adversely affect their members’ opportunity to observe the frogs in and around Sharp 17 Park.” City Mot. at 8. This argument essentially repeats the City’s argument regarding injury in fact - 18 that because the Frog population is not reduced, the members cannot be adversely affected. The Court 19 rejects this argument for the same reasons set forth above. 20 Regarding redressability, the City argues that neither an injunction nor declaratory relief would 21 redress any cognizable injury. “The relief plaintiffs seek would not enhance their opportunities to 22 observe the Frogs in and around Sharp Park or their opportunities to continue their searches for the 23 ‘elusive’ snake.” City’s Mot. at 8. The SFPGA adds that “it is by no means clear that the halting of [] 24 activities at Sharp Park, including pumping, will have a salutary effect on the Frog population - in fact, 25 pumping benefits Frogs by maintaining stable water levels . . .” SFPGA Mot. at 8. This argument also 26 sounds in defendants’ other arguments regarding population level impacts, which the Court has already 27 28 4 The Snake is the most endangered serpent in North America. Hayes Decl. ¶ 14. 16 1 rejected. Moreover, for the purpose of standing, the Court will assume that plaintiff’s remedial theories 2 are correct - that halting pumping will cease the dessication of Frog egg masses and halting mowing will 3 prevent the death of Snakes. See, e.g., Los Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 655 4 (9th Cir. 2011) (a plaintiff “need not show a favorable decision will relieve his every injury) (emphasis 5 in original). At the remedy stage, if plaintiffs prevail, the Court has discretion to fashion an equitable 6 remedy to resolve its injuries. See Winter v. National Resources Defense Council, Inc., 555 U.S. 7, 51 7 (2008) (emphasizing a court’s flexibility in moulding relief with respect to environmental laws.). 8 9 In sum, the Court finds that plaintiffs have standing to pursue their claims. The City and the SFPGA’s motions for summary judgment on this issue are DENIED. United States District Court For the Northern District of California 10 11 2. Defendants’ Request to Stay Case 12 The Court finds, however, that this case is appropriate for a stay pending the outcome of FWS 13 consultation.5 The FWS has had knowledge of the Frog population and its relationship to the City’s 14 pumping activities at Sharp Park since at least 2005. See Crystal Decl., Ex. 14 (Feb. 1, 2005 FWS letter 15 to City expressing the FWS’ concerns that the water pump at Horse Stable Pond is stranding Frog egg 16 masses, and recommending that the City apply for a Section 7 permit). In 2008 and 2010, the City 17 received permits from the FWS for localized improvements to the pump system and removal of 18 accumulated sediment from the pump house. See Order at 7. As noted above, during the winter of 19 2010-11, the City communicated with the FWS on a consistent basis in order to receive authorization 20 to move individual egg masses. Id. at 8. 21 In late fall of 2011, the City began the process of initiating formal Section 7 consultation with 22 the FWS. A number of meetings have occurred between the City and the FWS. The City has completed 23 a revised Biological Assessment - the first step in beginning consultation - and the FWS has 24 acknowledged receiving it, although it has not, as of the date of this Order, accepted it. Plater Decl., Ex. 25 1 (March 29, 2012 FWS E-mail, stating, “The [FWS] has not yet reviewed the revised BA, and thus not 26 27 28 5 This stay implicates the rest of the cross-motions: the City and SFPGA’s motions for summary judgment on the merits of the plaintiffs’ claims regarding take of the Snake, as well as plaintiffs’ motion for summary judgment on whether pumping is causing take of the Frog. 17 1 yet decided whether it is final nor whether formal consultation can now be initiated.”) The SFPGA, in 2 requesting a stay, represents to the Court that the consultation process “is expected to culminate with 3 the release of a Biological Opinion and Incidental Take Statement within the next few months, which 4 will moot this case.” SFPGA Reply at 11 (citing Ka’aina v. Kaua’i Island Util. Coop., 2010 WL 5 3834999, at *8 (D. Haw. Sept. 24, 2010) (exercising the court’s inherent authority to issue a stay in ESA 6 case where “the regulatory process regarding a permit for Defendant’s incidental take is progressing and 7 could be completed” within a few months)). At oral argument on April 20, 2012, defendants represented 8 to the Court that consultation may begin within 7 days, at which time the 135-day clock on Section 7 9 consultation will begin. See 50 C.F.R. § 402.14. United States District Court For the Northern District of California 10 The Frog breeds from November to April. Vrendenberg Decl. ¶ 8. Plaintiffs have previously 11 stated that in recent years, “the egg masses have been found in Sharp Park in late December.” Pl.’s Mot. 12 for Prelim. Inj. at 6 (citing Pl. Ex. 18 (Dec. 2010 Data Sheets)). This case presents unique circumstances 13 where, even taking plaintiffs’ claims as true, no take of the egg masses can occur until, at the earliest, 14 late winter 2012. As the FWS may issue a Biological Opinion within months that can at least inform, 15 if not entirely moot, this case, and because the breeding season for the Frog will not occur again until 16 late Winter, the Court finds this to be an appropriate case in which to exercise its inherent authority for 17 a stay. The stay will allow for the expert agency to review the City’s plan and evaluate the golf course’s 18 activities on the Frog and Snake. Plaintiffs argue that stay requests should only be considered when the 19 stay would last for a “finite duration.” Pls.’ Reply at 5 (citing Dependable Highway Exp., Inc. v. 20 Navigators Ins. Co., 498 F.3d 1059, 1066 (9th Cir. 2007)). The Court considers this stay to be for a 21 finite duration. The Court will review updates on the progress of the FWS consultation and, if by 22 October 2012 a Biological Opinion has not issued or plaintiffs’ claims are not otherwise mooted or 23 resolved, plaintiffs may move to lift the stay. Until that time, plaintiffs’ case is STAYED. 24 25 CONCLUSION 26 Defendant’s and Defendant-Intervenor’s motions for summary judgment on the issue of standing 27 are DENIED. The City’s request for a stay is GRANTED. Plaintiff’s motion for summary judgment 28 is DENIED. The case is STAYED pending the FWS consultation with the City. The parties are ordered 18 1 to file a Joint Status Report as soon as any action is taken by FWS, but in no event later than September 2 7, 2012. 3 4 5 IT IS SO ORDERED. Dated: April 26, 2012 SUSAN ILLSTON United States District Judge 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19

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