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Enviros Can Collect Fees in SF Golf Course Fight

SAN FRANCISCO (CN) - San Francisco officials owe nearly $386,000 in attorneys' fees after they were sued over the risk to wildlife posed by a golf course, a federal judge ruled.

Wild Equity Institute led a team of nonprofit conservationists in a lawsuit against the city and county of San Francisco, seeking to halt to all water pumping and the use of golf carts on the ninth through 18th holes of the Sharp Park Golf Course, a 417-acre park in Pacifica, south of San Francisco.

The groups claimed that water management at the 83-year old course violates the Endangered Species Act by exposing frog eggs to the air and killing them, while lawn mowers and golf carts routinely run over adult frogs and snakes. City and Sharp Park officials told the court that they constantly monitor the California red-legged frog population and protect the San Francisco garter snake with "no-mow" measures. They also suspend golf play if a snake or frog is seen.

U.S. District Judge Susan Illston slammed the conservation groups last year for failing to show that the animals faced irreparable harm. She noted there had not been a single snake sighting at the golf course in three years, and said it is "uncontroverted" that frog populations are increasing.

After she directed Fish and Wildlife Service to decide who is right, the agency entered an incidental take statement (ITS), estimating that golf carts and mowers will kill or injure "one frog and one snake," while harassing all park critters. The FWS also found that water pumping at the park's pond will cause a wide range of "takes" - harm, harassment, capture, injury or death - to 130 frog egg masses over the next 10 years.

Illston dismissed the case last December, finding the ITS shielded San Francisco from liability for now. The conservation groups have appealed that decision, but asked Illston to order the "costs of litigation" under provisions of the Endangered Species Act - despite failing to prevail in her courtroom.

The groups argued that the ESA's catalyst theory allows them to collect because their lawsuit pressured San Francisco officials to comply with FWS regulations. San Francisco rebutted by stating the groups' main goal is to take down Sharp Park, and pointed to the pending appeal of Illston's dismissal as proof of their ongoing plan.

But Illston - looking to the original complaint - found the conservation groups' goal was to halt the "taking" of frogs and snakes without approval under the ESA.

The incidental take statements required by FWS "found, as plaintiffs had alleged and defendants had denied, that incidental take of the frogs and snakes was occurring due to golf course operations," Illston wrote. "The ITS authorized the incidental take, so long as defendants complied with the list of requirements it set forth."

"Plaintiffs are only required to achieve some success, not perfect success," the judge added.

She also rejected the argument of officials that they filed the "take" applications independently from the groups' lawsuit.

"It was not until after the preliminary injunction motion that defendants sought take authorization, almost a year after the FWS encouraged them to," Illston wrote. "Moreover, the authorization was for take pursuant to the pumping and golf course activities, as opposed to authorization just for moving frog egg masses. The timing and scope of the authorization indicate that plaintiffs' lawsuit was at least a substantial causative factor. Finally, an August 2012 letter from defendants to the FWS requested that the agency 'ensure we have the final [approval] by September 7th' because 'it is extremely important to be able to dispose of the litigation at long last.' This indicates that a motivating force behind defendants' pursuit of the approval was to dispose of plaintiffs' lawsuit."

The conservation groups also succeeded on the second portion of their catalyst theory, since the incidental take statement now legally requires mitigation measures, which are no longer voluntary or "gratuitous" on the part of San Francisco officials, according to the ruling.

Illston nevertheless substantially lowered Wild Equity's demand for $1.3 million in court costs and lawyer fees. She noted that the groups failed to prevail "on a single substantive motion before the court," despite gaining their desired outcome.

"Although the court cannot determine with precision which of the hours spent were duplicative or unnecessary to achieving plaintiffs' goal, the fact that plaintiffs lost every single motion leads the court to believe that a large majority of the time spent was 'excessive, redundant or otherwise unnecessary' and therefore should not be compensated," Illston wrote.

She also questioned why the group's Washington, D.C., attorneys - at $700 an hour - spent so much time on the case while the $300-per-hour junior associates accounted for less than 12 percent of the attorney hours in the case.

"This grossly inefficient allocation of resources seems unwarranted by this simple ESA action," Illston wrote. "Plaintiffs fail to justify this excess."

The judge reduced the groups' demand for attorneys' fees by three-quarters, to $326,000. With a $59,209 award for costs, San Francisco taxpayers are now on the hook for a total of $385,809 - not counting the pending appeal of Illston's dismissal.

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