Sebastopol watchdog group fires first salvo

Sonoma County Supervisors agreed to hire an environmental attorney last week to help defend the county against charges that local vineyard development is illegally destroying critical habitat of the California Tiger Salamander.

Sonoma County “routinely issues permits for vineyard development” that has destroyed salamander habitat in the Santa Rosa plain between Windsor and Petaluma, according to a lawsuit filed in January by California River Watch, the Sebastopol non-profit watchdog group that specializes in suing government entities for alleged non-compliance with environmental protection laws.

The California tiger salamander (CTS) was listed nearly 10 years ago as in danger of becoming locally extinct because of development in the Santa Rosa plain. Since then, pro-development advocates and environmental groups have clashed over the appropriate protections needed to keep the salamander from becoming extinct.

The suit filed by River Watch attorneys Jack Silver and Jerry Bernhaut accuses the county of permitting vineyard development that has resulted in violations of the federal Endangered Species Act (ESA) that prohibits any “take” or harming of a listed species.

The ESA defines a take “in the broadest possible manner to include every conceivable way in which a person or entity can take or attempt to take any fish or wildlife listed as endangered or threatened,” said Silver and Bernhaut in their legal papers. The ESA also allows citizens to go to court to resolve alleged ESA violations, and to collect attorneys’ fees.

River Watch says the county is allowing vineyard development that has resulted in destruction of protected CTS habitat including vernal pools, wetlands and burrows “essential to their survival” on nearly 50,000 acres designated as CTS conservation areas.

When the salamander habitat designation was first proposed in Sonoma County 12 years ago it drew outrage from the building industry and business leaders who said the habitat designation would create havoc with everything from residential development to grape growing.

The designated critical habitat in the Santa Rosa plain initially covered more than 70,000 acres but was reduced to less than 50,000 acres “due to backlash from developers and other special interests,” says the River Watch suit.

The suit seeks a court order to halt vineyard development on the Santa Rosa plain unless applicants have a an ESA “incidental take permit” and have conducted studies required by a CTS Conservation Strategy created five years ago. The conservation strategy was part of the settlement of an earlier lawsuit filed by the Center for Biological Diversity.

The River Watch lawsuit says the conservation strategy isn’t working and will likely lead to the extinction of Sonoma CTS.

“The loss of hundreds of individuals of both the current and next generation of this rare and endangered species, the increasingly hostile environment in which the species is expected to survive and its already critically low numbers is a devastating setback to its recovery which may well lead to extinction of the species if the county’s permit approval process is not altered to ensure compliance,” says the suit filed in U.S. District Court.

Sonoma County Supervisors last week agreed to spend up to $250,000 to hire attorney Skip Spaulding, an experienced environmental attorney with the San Francisco law firm of Farella, Braun and Martell, to serve as co-counsel representing the county.

Spaulding’s experience includes a stint as a managing attorney and the national litigation director for the Sierra Club Legal Defense Fund (1989-1995), where he was the lead counsel in significant citizen lawsuits under the Clean Water Act, Endangered Species Act, NEPA and other laws, according to Sonoma County Deputy County Counsel Verne Ball in a report to the supervisors last week.

Spaulding has agreed to represent the County for an approximately 25 percent reduction from his normal rate, said Ball.

Spaulding “is very familiar with the precise type of ESA vicarious liability claim alleged in the complaint, which will benefit the County and save the County in terms of legal expenses,” said Ball’s report to the board.

Spaulding recently “reached a complete defense verdict in one of the few ESA cases that have reached the trial stage in the Northern District of California,” said Ball’s report.

Critics of River Watch litigation have accused the group of using federal environmental protection laws such as the ESA and the Clean Water Act to sue deep-pocket governmental entities that often agree to settle out of court. A River Watch suit over the Town of Windsor’s sewage treatment operations was resolved last year in a mutually agreed upon settlement that included River Watch receiving more than $55,000 in attorney’s fees and other expenses.

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