By Erin Sherbert
By Rachel Swan
By Erin Sherbert
By Erin Sherbert
By Erin Sherbert
By Albert Samaha
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By Erin Sherbert
Tucked in the Hayward hills, past miles of new tract housing, is a swath of sloping grassland dotted with oak and bay trees, and clusters of grayish rocks. As it stands today, this land, Walpert Ridge, is an open space with winding dirt roads and cattle. An abandoned barn at the edge of the property is the only building in sight, giving the land a sense of vast emptiness. From the ridge, there is a spectacular view of San Francisco Bay, and urban life twinkles in the distance.
As serene as the ridge may seem, it has been a battleground between developers and environmentalists for more than two decades. The debate is typical: The developers want to build luxury homes on the land they own; the environmentalists say they are trying to protect the land because two endangered species live there.
But a recent lawsuit filed by two environmental groups against the U.S. government has elevated the debate beyond the ordinary, for two reasons. First, it could make Walpert Ridge a test case over what obligations the government has to preserve "critical habitat" for endangered species. Second, it raises the question of how much politics plays a role in approving such environmentally sensitive projects. Environmentalists say they have the documents to prove that political pressure, not science, drove the U.S. Fish and Wildlife Service to give the developers the green light.
Development company Hayward 1900 has grand plans for Walpert Ridge, where it plans to build an elementary school, 614 luxury homes, a park, and an 18-hole golf course on 1,642 acres. The development, called the Blue Rock Country Club, would boast a breathtaking view of the bay from almost every vantage point.
A number of developers have tried building houses on Walpert Ridge since the '80s, though they have been thwarted several times by voter referendums or environmental issues. In trying to meet environmentalists' demands, Hayward 1900 has scaled back the development from 1,800 homes to just over 600 and added more open space in the form of a park and a golf course.
The Blue Rock development has come under intense governmental scrutiny because it calls for filling in eight acres of wetlands, which requires a government permit.
Before it could award a wetlands permit to the Blue Rock developer, the government had to call in the Fish and Wildlife Service to craft a "biological opinion," a report that states whether the development would harm the endangered species there. Biologists spent more than a year studying the Alameda whipsnake and the California red-legged frog, the two endangered species that make their homes at Walpert Ridge.
Biologists issued a draft opinion in April 1999, asserting that the golf course -- more than the houses -- would pose a number of problems for the two species and ultimately challenge their survival. Yet when the final report was issued in December 1999, the agency reversed that opinion -- over the objections of its own biologists -- which allowed the Blue Rock development to proceed.
To block the golf course, two East Bay environmental groups -- the Hayward Area Planning Association and the Center for Biological Diversity -- filed a lawsuit last November, arguing that it would destroy critical habitat. Under the Endangered Species Act, federal agencies are forbidden from "adversely modifying" or destroying habitat necessary to an endangered species' survival. The suit is one of very few in California to call upon this little-used statute. The argument is rarely used in court because the Fish and Wildlife Service has yet to even assign critical habitat designations for about 90 percent of endangered species in California.
The Walpert Ridge case is also thought to be one of the first to use critical habitat as a legal argument involving private development, and the first such case involving Bay Area development. As such, environmentalists, government agencies, and developers are looking to this case to help define the government's responsibility toward endangered species, and the limits that could be placed on development.
In their court brief, the environmental organizations point out that Fish and Wildlife named land on the Blue Rock project site as critical habitat for the Alameda whipsnake in October 2000. In September 2000, the service also proposed critical habitat for the red-legged frog, which includes land on the Blue Rock site too. That designation should be finalized in March.
Though there is no dispute that the golf course will be built on sensitive ground, there is a vast difference in how the "critical habitat" statute is interpreted. Environmentalists believe the designation means that endangered species in those areas must be given added protections.
The Fish and Wildlife Service, however, argues that the critical habitat label by itself has little meaning and is trumped by the biological opinion the agency issues for each construction project.
How much weight the courts will give to critical habitats is unknown. "The interesting question in these cases is: Does the critical habitat designation in fact provide additional protections for an endangered species?" says Dan Rohlf, an environmental law professor at Lewis and Clark College. "The courts have never ruled on that issue. Any case that raises that issue is going to be a groundbreaking case."
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.
"The negotiations [with Hayward 1900] included some key features in the area of the golf course and one rock outcropping because it was important to the snake. We did a lot of fine-tuning."
But Professor Rohlf of Lewis and Clark's environmental law clinic says he doesn't think the Blue Rock scenario is all that unique. "This happens all the time," he says. "I've talked to a lot of these biologists. The biologists at the service say that the project will harm the species, and they write a jeopardy opinion. It goes to the developer and the developer goes ballistic, so they bring all sorts of pressure to bear on the Fish and Wildlife Service. Then they make a few cosmetic changes here and there, and then, magically, it's no longer jeopardy."
Meanwhile, Steve Miller, president of Hayward 1900, says his company has suggested multiple mitigation factors that will, in his mind, make Walpert Ridge an even more attractive place for the endangered snake and frog. "We'll create a better [environment]," he insists. "When people look at the whole history of the project, they'll see that this is a very sensitive project, sensitive for the species, creating a community, a school for children. We're not really the developers. We're the guys that put this project together for the biologists and for the city."
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