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By Chris Roberts
By Kate Conger
Jeff Miller of the Center for Biological Diversity thumbs through a box of court documents in his unheated Berkeley office. The long-haired, bespectacled Miller is familiar with litigation. In the past two years, his organization has sued the Fish and Wildlife Service about a dozen times to acquire critical habitat designations for 25 endangered species such as the whipsnake and the red-legged frog.
Having won or settled all of the critical habitat cases the organization has pursued so far, Miller has turned his attention to the Blue Rock suit.
Miller says that in addition to possibly leading to a landmark decision on critical habitat designations, the case is a good example of something that happens too often: political pressure taking precedence over scientific findings.
He points to the draft biological opinion, a 41-page document written by two Fish and Wildlife biologists that cites several negative effects the golf course could have on the snake and frog. Among them, the draft opinion says, the Blue Rock development would cause the direct loss of about 800 acres of snake habitat; and the golf course would restrict the movement of the snake, which could isolate the population and "lead to the eventual extirpation of the species." The project would also contribute to the "loss of ... frog breeding sites [which] could lead to extirpation of California red-legged frogs from significant portions of the Core Area."
But months later, in the final biological opinion, the scientific conclusion was changed to that of "no jeopardy." The developer had made a few minor changes to the plans and suggested a few untested mitigation measures, which included designing habitat pockets and corridors so the species could migrate, pledging to protect the frog from fertilizers and other animals, and moving a tee out of rock clusters that whipsnakes like to inhabit. But the biologists working on the project were not satisfied, and both refused to sign off on the final draft.
Jason Davis, one of the biologists who worked on the draft opinion, is vocal about how he was overruled by agency management on the final draft.
Davis spent a year researching the snake and frog for the draft opinion, he says, and attended more than 20 meetings with various parties involved in the Blue Rock development between the issuance of the draft and the final opinion. He says there were some meetings that he was not invited to, such as one in Washington, D.C., among the developers, Hayward city officials, and top Fish and Wildlife officials.
"A final deal was made at a meeting in November," Davis says. "Until that point, our operations manager was taking a strong stance that we wanted to keep development behind this line we had drawn. But at this meeting he said, "OK, let's cut a deal,' and we started talking about minor shifts of tee boxes and golf course greens. So we ended up shifting one tee box, and that was it. They essentially got everything they wanted. I was bewildered. It happened so fast, there was no biological reasoning behind this decision, at least in my mind.
"I think he [the operations manager] got worn down, he was sick of all the phone calls, tired of all these barking dogs."
In a court brief, environmental groups suggest that "the [Fish and Wildlife] Service was intimidated by Hayward 1900 into backing away from its jeopardy call. The record reveals a consistent pattern of resistance and pressure by Hayward 1900 representatives in response to service biologists' suggested changes."
According to internal Fish and Wildlife Service documents obtained for the lawsuit, several memos and letters were sent from Blue Rock's attorneys to agency officials expressing discontent with the initial biological findings. One April 1999 letter was explicit: "I am writing ... to express ... deep concern and dismay over the Fish and Wildlife Service's draft opinion. ... The proposed biological opinion is unacceptable to Blue Rock."
The pressure placed on the service is also alluded to in e-mails sent from Field Supervisor Wayne White to several biologists about the Blue Rock project in October 1999. An Oct. 6 e-mail mentions a trip made by Blue Rock attorneys to Washington, D.C., where "they travel to D.C. to take shots at us," White writes. An Oct. 22 e-mail says, "We can't let this go on any longer. One way or another we need to conclude this or we've got to go to war."
The biologists working on the draft opinion resisted the final opinion to the end. The day before the final report was issued, one biologist sent an e-mail titled "Blue Rock edits" to Fish and Wildlife management. "P. 21 should stay," the e-mail says. "The impact to the Alameda whipsnake is quite significant. ... P. 24. I didn't do that. ... I don't agree with the no jeopardy opinion, but you already knew that."
Fish and Wildlife's White says that he stands by the agency's final opinion, and that staff biologists do not dictate the actions of the agency. "Staff biologists do not make decisions," he says. "They make recommendations. And biology is not an exact science. There is a lot of opinion and viewpoints incorporated into that. It has been a dialogue about biology, not about politics.