In the most recent development in the long-running legal battle between anti-golf groups, golfers, and the City of San Francisco over the historic Sharp Park Golf Course, a federal judge has issued an order awarding $326,600 in legal fees to the plaintiffs in Wild Equity Institute, Center for Biological Diversity, et al vs. City and County of San Francisco, N.D.Cal., No. C 11-009958 SI.
In December of 2012, the plaintiffs were on the losing end of the case when the court dismissed their claim.
Explaining her ruling to award only 25 percent of the requested $1.3 million, the court noted that the “plaintiffs lost every single motion,” including a motion for a preliminary injunction to halt golf operations. Nevertheless, the judge explained, the Endangered Species Act (ESA) authorizes attorney fee awards “whenever the court determines such award is appropriate.” In this case, a fee award was “appropriate” because the lawsuit, which the plaintiffs filed in March of 2011, spurred the City to apply to the US Fish and Wildlife Service (FWS), which issued an Incidental Take Statement, sanctioning limited amounts of “take” at Sharp Park of the federally-protected California red-legged frog and San Francisco garter snake. The FWS concluded that golf at Sharp Park is not a likely threat to the survival of the two species.
Led by the Center for Biological Diversity and its offshoot Wild Equity, the plaintiffs then moved for an award of legal fees and costs, under a citizen-suit provision of ESA. The court ruled that the fact that the plaintiffs’ case was dismissed, after they lost every motion, was evidence that “a large majority of the time spent was ‘excessive, redundant, or otherwise unnecessary,’ and therefore should not be compensated.” Furthermore, the judge’s order cited the plaintiffs’ “grossly inefficient” case-handling, including “unwarranted” allocation of more than one-half the lawyers’ hours in a “simple ESA action” where “most of the issues were not complex,” to Washington D.C.-based attorneys with billing rates of $700 per hour and more.
Finally, the court asked the question: “Did the plaintiff achieve a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award?” The order answers the question this way: “… the answer to this question requires significantly decreasing the fee award.
Although the court finds the plaintiffs’ lawsuit spurred defendants into obtaining the necessary authorization for their take of the Frogs and Snakes, little else has substantially changed in the management of Sharp Park.. . . Thus, when looking at the larger picture, little seems to have been gained by the plaintiffs except [speeding-up the city’s application for US Fish & Wildlife Service authorization, which] at oral argument the plaintiffs conceded. . . would likely have happened eventually.”
The judge’s bottom-line was that the plaintiffs’ fee request should be reduced by 75 percent, from $1,306,400 to $326,600, which she ordered the City and County of San Francisco to pay, together with an additional $59,209 in costs.
Pacifica resident and Sharp Park women’s club member Lisa Villasenor was not pleased. “Sharp Park is a landmark which has for more than 80 years been a beloved, affordable public recreation resource for the region, with unanimous support from both the Pacifica City Council and the San Mateo County Board of Supervisors,” Ms. Villasenor said. “And it’s an odd law, or an odd decision, or both, when the plaintiffs’ lawsuit is dismissed and the judge finds their legal practices wasteful and says the suit did not change things much, yet still awards the plaintiffs any fees at all.”
Attorney Chris Carr of the Morrison-Foerster law firm, which represented the San Francisco Public Golf Alliance, voiced concern about implications of the Court’s order. “While Plaintiffs’ exorbitant fee request was slapped-down, the fact that the Judge awarded any fees at all just shows how vulnerable to abuse the Endangered Species Act has become,” Carr said.
