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In Wild Equity Institute v. City and County of San Francisco, 2012 U.S. Dist. LEXIS 58620, Plaintiffs, a collection of non-profit conservation groups, sued the City of San Francisco (City) for violation of the Endangered Species Act (ESA), claiming City’s actions as the owner and operator of the Sharp Park Golf Course (SPGC) have caused the “taking” of the threatened California Red-Legged Frog (Frog) and the endangered San Francisco Garter Snake (Snake).  Both parties filed cross-motions for summary judgment. Plaintiffs sought partial summary judgment on the issue of whether the City’s water pumping activities caused a “taking” of the Frog.  City countered with motions for summary judgment on the grounds that Plaintiffs lack standing to pursue their claims, or in the alternative, sought a stay during consultation with U.S. Fish and Wildlife Service (FWS) for authorization to move individual Frog egg masses.  The District Court for the Northern District of California denied both parties’ motions and stayed the case.

Addressing first the issue of standing, the court began by discussing the Article III standing requirements of injury-in-fact, causation, and redressability.  The court quoted  Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 181 (2000) to explain that environmental plaintiffs have suffered a concrete, actual, injury-in-fact when they “aver that they use the affected area and are persons ‘for whom the aesthetic and recreational values of the area will be lessened’ by the challenged activity.”   The court held that these Plaintiffs have claimed impaired enjoyment of seeing the Frog and Snake, have pinpointed specific dates at which they have visited the park, and have presented concrete plans to visit the park again in the future; Plaintiffs have sufficiently shown an injury-in-fact.

Regarding causation, City argued that Plaintiffs did not show that City’s actions at SPGC reduced the Frog population to the extent it would adversely affect their opportunity to observe the Frogs.  The court rejected this argument finding a genuine issue of fact pertaining to the growth of the Frog population – according to City it is growing, but according to the Plaintiffs’ experts the population is merely stable.  The court explained that the value of an area can be affected by a stymied population growth even in the absence of an actual population loss.  Pertaining to redressability, the court assumed that Plaintiffs’ remedial theories are correct, that halting the pumping and lawn mowing actually will stop the “taking” of the Frog and the Snake.  Finding all three criteria satisfied, the court held that Plaintiffs have standing.

The court held, however, to stay the case for two reasons.  First, the court found that the City’s consultation with FWS is underway and could possibly be completed within a few months.  The court wanted to allow the expert agency to review the City’s plan and evaluate the impacts on the Frog and Snake.  The court explained that if the City is granted authorization, then the case will be moot.  Second, the court felt that since it is now April and Frog breeding will not occur again until late winter, no actual “taking” of the Frog eggs will occur until then.  Therefore, the court ordered a stay pending the outcome of the FWS consultation.

Written By: Tina Thomas, Chris Butcher and Holly McMannes (law clerk)
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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