The Salmon Protection and Watershed Network scored another win in Marin Superior Court, but it may turn out to be a relatively empty victory.
On Friday, Judge Andrew Sweet issued a ruling basically agreeing with arguments in a legal filing by the Salmon Protection and Watershed Network (SPAWN).
“We are very disappointed in the ruling,” Marin County Counsel Brian Washington wrote in an email.
Sweet, however, denied a request by SPAWN representative Kate Gaumond, a certified law student of the Stanford Law School Environmental Law Clinic, to impose legal remedies, including a moratorium on development within a certain proximity to creeks and streams in the Lagunitas Creek watershed and San Geronimo Valley.
The remedies requested by Gaumond would have also required the county to adopt an expanded streamside conservation area ordinance to protect threatened coho salmon and steelhead trout in San Geronimo Valley within six months.
Gaumond said the remedies were appropriate, necessary and reasonable “given the incredibly fragile state of the salmon and steelhead today and the county’s history of delay.”
Deputy County Counsel Brandon Halter, however, said, “For this court to dictate to the Board of Supervisors that it needs to adopt legislation by a certain date, I don’t think is justified.”
SPAWN and the county have been battling in court for years over what steps the county should take to protect the fish.
In a previous suit, SPAWN challenged the adequacy of the environmental analysis conducted for the 2007 update of Marin’s Countywide Plan. The plan allowed further development in the Lagunitas Creek watershed and San Geronimo Valley, which SPAWN says threatens the survival of the fish.
In 2015, the 1st District Court of Appeal in San Francisco directed the county to set aside its approval of the 2007 Countywide Plan in the San Geronimo Valley and ordered the county to prepare a supplemental environmental impact report (SEIR).
The SEIR, which was certified by the Board of Supervisors in August 2019, found two significant impacts and one less-than-significant impact to the fish, but said the impacts could be mitigated — primarily by the adoption of a new streamside conservation area (SCA) ordinance.
The county gave itself five years to complete the SCA ordinance, “barring unforeseen delays caused by continuing, new, or threatened litigation.”
In the legal filing ruled on this week, SPAWN challenged the adequacy of this mitigation and asserted that the mitigation is unenforceable because a current board of supervisors can’t bind a future board to enact legislation.
SPAWN also argued that the county had failed to justify its decision to postpone enactment of an SCA ordinance and did not include performance standards to evaluate its effectiveness.
In his decision, Judge Sweet agreed with all these points.
“The SEIR does not explain why the county could not, and did not, develop and enact a SCA ordinance at the time the SEIR was prepared and certified in August 2019, or why it needed up to five additional years, and possibly more, to enact one,” Sweet wrote in his decision.
Sweet added that the proposed SCA ordinance mitigation “fails to include objective performance criteria for measuring whether the stated goals will be achieved.”
Todd Steiner, executive director of SPAWN, said in a statement that rather than enact a “commonsense, science-based streamside protection ordinance” the county has delayed, spending hundreds of thousands of dollars on consultants and lawyers.
“Once again,” Steiner said, “this strategy of delay has been ruled illegal by the courts.”
Peter Broderick, an attorney for the Center for Biological Diversity, said in a statement, “These runs of coho and steelhead are going extinct before our very eyes. The county now has no excuse for not adopting long-overdue stream protections.”
But Peggy Sheneman, a board member of San Geronimo Valley Stewards, a nonprofit representing homeowners in the area, said, “The fact that there isn’t any remedy or specific order that the county must comply with basically means that SPAWN failed in its lawsuit. It doesn’t seem to me they’ve accomplished anything.”
Sheneman said Judge Sweet did signal, however, that the court will continue to monitor the situation and that the eventual SCA ordinance will need to include “clear black and white performance standards that people have to comply with.”
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April 11, 2021 at 06:47AM
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Judge rules Marin County delaying ordinance to protect fish - Marin Independent Journal
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