By: Rob Harris

We have followed for some time the battle between the defenders of San Francisco’s, Alister MacKenzie designed Sharp Park golf course and certain environmental groups concerned that the ongoing golf course operations are wiping out the populations of the endangered California red legged frog and San Francisco garter snake.

In December, the golf course won the judicial equivalent of a second round knockout when the federal judge dismissed the environmentalists case in its entirety.  Indeed, the court deemed the arguments in favor of dismissal so compelling that she entered her order on the basis of the parties’ written submissions, cancelling a scheduled hearing at which the parties were to present their oral arguments.

Undaunted, the environmental groups nonetheless filed a motion seeking to recover their attorneys’ fees, claiming that they were “prevailing parties” under the applicable statutes.  In a decision that most non-lawyers (and many are-lawyers) would find Wonderland-like, the judge agreed, granting plaintiffs $326,600 in attorneys’ fees and another $59,209 in costs, notwithstanding her observation and finding that “plaintiffs did not prevail on a single substantive motion before the Court.”

So how did the judge reach this conclusion?  First, she noted that “plaintiffs’ litigation goal was the halt defendants’ taking of the Frogs and Snakes without first obtaining authorization” from the Fish & Wildlife Service as required by statute. Then, she found that, even though authorization indeed was obtained, the lawsuit was at least one substantive cause of the decision (or at least timing) of the request for authorization. Thus, as the court concluded, the plaintiffs had satisfied the statutory requirements necessary to entitle them to recover attorneys’ fees.

As to the amount of the recovery, however, the court determined that the award should be reduced by 75 percent from the $1,300,000 that plaintiffs were requesting. The court reasoned as follows:

At oral argument, plaintiffs conceded that defendants’ FWS authorization would likely have happened eventually, but plaintiffs’ suit caused it to happen sooner. Thus, when looking at the larger picture, little seems to have been gained by plaintiffs, except this extra time. Moreover, plaintiffs do not seem satisfied with the outcome of the suit. Plaintiffs are appealing the Court’s order dismissing the case.

So, to summarize where things stand:

1. Golf continues at Sharp Park.

2. Snakes and frogs will survive as species.

3. Environmental groups “did not prevail on a single substantive motion before the Court,” but go home with almost $400,000 in attorneys’ fees and expenses covered by the party that did prevail on every substantive motion before the Court.